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tv   C-SPAN Weekend  CSPAN  May 16, 2010 2:00am-6:00am EDT

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tomorrow. currently, unfortunately, the weather is not conducive to skimming or burning operations. we will try to use all of our tools over the balance of next week. we continue to have a massive response, over 17,000 people working on this effort. we have them ploy to 30 aircraft, 650 vessels. it is a massive effort involving four states, members of the government, bp individuals, and numerous contractors. i extend all my thanks to those
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people whose efforts are making us have some success. thank you. . >> governor jindal has expressed concern that there's been a lot of attention paid to where the oil is on the surface, what we
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can see, how much do we know about where the oil under water is. is that being modeled, or are we just waiting for it to wash up on shore to see where it is, and are we going to expect to see more of these tar balls coming up to shore? what's the plan for that? >> let me tell you the direction of the president of the united states. we want to be transparent with the entire nation. the nation requires that of us. any information we have, we need to make available. it is a difficult thing to major, so there are lots of guesses out there in terms of the amount of oil and the quantity of oil that has already gone out to sea. the amount of oil that has already been cleaned up. but whatever information it is that we have, as a government, we want to make available to everybody. >> we're working very closely with governor jindal and his
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staff, and certainly we had some visuals on some oil that was disbursed that was sitting about 18 inches below the water column, and we trapped that. what we're seeing on the shoreline is ribbons of iowa. it's not a huge swath of shoreline that's covered. it's a few places. we have teams right away ready to respond to that spill and clean that up. what we are also doing is trying to communicate with everybody, and we have taken information that we knew about the oil and we're trying to translate it to pictures we're getting on the coastlines, whether it's ribbons, what does it exactly look like, displaying those pictures on a website and explaining how we would approach the cleanup so that we can mitigate people's concerns that there's something out there that's unknown. we have a pretty good handle on the oil we're dealing with. we have a very good handle on the oil we're dealing with, both at the source and on the surface, and as it hits the shoreline. i would just refer people to the websites.
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take a look. we're certainly going to communicate this to all the gulf coast residents as well. through their states, through their counties and parishes, so theave has an understanding of the state of the iowa. we really apologize if people are concerned out there because they haven't gotten enough information. we are pushing this out and we will continue to do that to allow people's concerns that there's some -- to allay people's concerns. >> question about the disburr assistance. i guess to you, mr. sullivan. i'm getting to the issue of are there many people who believe there are less toxic, more environmentally friendlier, cheaper ways of doing this, and there's some concern that orders
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have gone out for more. i guess people are wondering why you haven't bought those and stuck stuck with it. >> let me start with explaining what these dispurr assistants do, whether they're applied on the surface or the sub surface. their intent is to break the oil into much, much smaller droplets. what that then does is allow the natural degradation process. the mike robes in the water actually absorb the iowa. it allows the natural process to be accelerated. that's the way it works. we have a second product now identified to use which we'll begin introducing into the process as well. one of the things we have to understand here is we have to be able to supply these in sufficient quantities. the good news about using it as we should be able to use considerably less than we do when we have to apply it to the
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surface. so if it works as we've seen in the test, it should mean that there's much less oil on the surface, which means our total usage will drop significantly and we should be able to monitor and report on that the next few days. >> it's important to also understand that the things being used are part of an equipment list that has been approved by the federal government and through the states through the national response teams. it's important to understand that there was a preapproval for this ahead of time. and this is not done just by willy nilly anybody can take a product out there and put it out there. it's been analyzed and studied as to what the product is. as far as new opportunities, we are really trying to actively engage with those offers, because this is an opportunity for us to do more study and analysis, and we've set up a special team for that through the national response team and the regional response teams, the federal government and the state
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governments to obviously work together, and working with science labs such as l.s.u. and cose stall science centers. but we have preapproved commodities that are being used right now that have gone through this testing and analysis. i would caution us to not get too far ahead on something that hawes not been preapproved for use. on a wide scale. >> any questions? [inaudible] >> we will start the question and answer question. if you'd like to ask a question, please press star one. please remember, one question for line. our first question is from matt from abc news. your line is open. >> thank you.
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mr. suthle, i wonder if you can tell us specifically what went wrong today. >> my understanding is that there was an effort to try to put the insertion tube in last night. there is now a second effort under way because that did not work, and the latest that i heard from b.p. is they hope to be able to have it in place tonight. i want to just comment on how this whole thing is being looked at from our perspective. the first is that these are essentially flow mitigation measures. this is not going to -- essentially three steps to this. the first is to deal with flow mitigation and to try to stop as much of the leak as possible. the second is essentially stop it from flowing. that will be the evidents that will be under way this week. the third will be the ultimate relief well that won't be drilled until august. it's our hope that through all these efforts that are under way with b.p. and the global
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community that has come together to look at all these different option, overseen now by the group of smartest people on the planet under secretary chui's leadership, the steps that are being taken are the steps to bring this incident into control. >> next question, "washington post," your line is open. >> thanks for the question. i didn't really hear an answer to the last question. what happened when you tried to put the insertion tube down there? is mr. suttle capable of answering that? >> i will have doug answer that specific question. i will say this. every morning first thing in the morning, we get an update on what exactly is going on. b.p. has missed the deadline with respect to the scheduled activities that it has under way in a number of different ways. it reflects the reality that they're operating on a very difficult circumstance, and in
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conditions that are very difficult to essentially put in some of the mechanisms that they are trying to put in. as to the exact reasons why the first effort on the riser insertion didn't work, let me turn that over to doug so i'm not guessing as to what exactly happened. >> thank you. i fully agree with what the secretary just said. the challenge is working with 5,000 feet of water. this tool sets in a metal frame so the drill pipe lowered from the discover enterprise can connect to it. when they attempted to connect to it, the frame shifted, so they were unable to make that connection, so what they had to do was bring the frame and the tool back to the surface and reorient the frame, so that the next intent to connect would be more successful. that's the explicit problem we had last night. the adjusted frame and the tool are now back on the seabed, and as we speak, they'll be
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attempting to make the connection. >> our last question, "new york times," your line is open. >> mr. suttle, just a follow up on that. you mentioned how difficult it is to be working 5,000 feet below the surface. in this instance with the riser, was it a temperature problem or pressure problem that caused the problem? >> no. it was actually just the mechanical act of trying to take this 5,000-foot-long string of pipe and connect it to this tool. it's essentially a mile long into what we would call stab into or connect into this tool. once we insert the tool into the pipe, the reason we're using this insertion tool technique is to try to exclude the water so we won't have the hydrate problem we had the previous time. >> thank you, everybody.
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that concludes our press conference for today. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> monday, campaign rallies for pennsylvania's 12th congressional district candidates. democrat mark crits with former president clinton in johnstown. and a rally for massachusetts massachusetts -- monday at 8:00 p.m. eastern on spann. >> watch this week's hearings on the gulf of mexico oil spill, or look back at the exxon valdez hearings from 1989 at the new
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c-span video library. it's washington your way. search it, watch it, clip it, and share it. every program since 1987 available free online. >> president obama honored law enforcement officers killed in the line of duty last year at the national peace officers memorial service. the event featured a musical performance by country music singer lee ann womack. this is 40 minutes. >> heavenly father, as we join here with support of our president of the united states barack obama and other government leaders along with law enforcement agencies,
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families and friends, we pay tribute to our fallen heroes. father, use your comfort and help us to see your greatness in glory. may your love radiate through us through every family. renew their strength so that they shall run and not be weary. . k bau make his face to shine upon you. may all the peoples praise you. . amen. please be seated. >> >> it is my honor and privilege to welcome you to peace officers memorial service. i would like to begin this afternoon, actually morning now n
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introducing our keynote speaker, the president of the united states, barack obama. [applause] president obama made his commitment to law enforcement and public safety within days of not getting into office. he moved quickly to get funding for our state and lal departments to retain and hire new law enforcement officers at a time when overseas deployments were leading to reduced numbers of officers. president obama led the charge to secure more than $4 billion in federal funds for local and state law enforcement agencies. this budget has a renewed commitment to the nation's most successful anti-crime programs, most importantly that done by a
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the police and services operations. he sent a letter asking for an additional billion dollars to be used by state and local governments by firefighters and atand local officers. he has and has continued to be remarkably open and have sought and received our input for many of his important law enforcement posts. president obama has shown himself to be a partner for the rank-and-file officers. brothers and sisters, family, distinguished guest, please help me welcome the presidt of the united states, barack obama. [applause] >> thank you.
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thank you for that warm introduction. i want to commend the police and all of leaders of the work they have done o behalf of the peace officers. we also recognize the of sillery president and members of congress and my administration including -- to the survivors of law enforcement officers. sbands and wives, mothers and fathers, you protect us all.
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thank you for the service you are rendering to our nation. thank you for the service that you have made on behalf of our people. families. but the lives, they wake up, they go for breakfast, they send their kids off for school, they head into the office or the factory floor and afterwards they returned home ready to do it again. we know of course that some things can change overnight. we rely on a certain order without being the victims of crime. this sense of security does not,
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the sun. what makes it possible, what makes freedom possible if the law enforcemt officers that we honored today and the men and women such as you. for anyone who has put on a uniform in the name of law, order, protecting and defending the united states of america. what led you to live such a life? part of this what leads any of us to pursue a profession, our responsibility to provide our families with better life. there is also a family legacy, a proud it inheritance.
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there's also another reason, a higher cost for the men and women that are called to be peace officers. a call to live and live and serve others. this is a calling that carries a man's risk. you don't know what dangers you will confront each time you put on that uniform. you don't know what the next day will bring. all you know is your duty. it is a duty that you fulfil every single day. today we honor americans who lost the lives in pursuit of that duty, in pursuit of that calling. we honor one of the traffic
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sargents, a 17-year veteran of the oakland police department. this is the kind of guy you can count on for getting you to do the right thing. he was killed on march, 2009 on a traffic stop. he leaves behind his wife, angela, and three children. we honor mark lopez. need delayed serving a minor and mort. he could -- for his family.
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we honor trooper miller, a veteran of the pennsylvania state police and the u.s. marine corps. the only thing he likes more than stopping drunk drivers was spending time with his wife, angela, and his three daughters. he was killed on february 7, 2009. we honor each americans and each of a law enforcement officers who lost their lives in the duty. each is loved, peaches missed -- each is missed. one deputy was shot investigating a disturbance at a
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pub in 1792. such sacrifice is what makes it possible for us to go on about our lives and to join our freedom. guarding over this park are four bronze lions. hey are from the book of proverbs. "the wicd flee when no man pursues them but the righteous are as bold as a lion." they got watch over those that guard us still pinned dow. made a watch over the united states of america.
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-- made a watch over the united states of americ -- may they watch over the unit states of america. [applause]
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♪ ♪
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♪ [applause] ♪
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>> i like to thank the president of the nine states for his inspiring words. now i would like to take an opportunity to introduce a few of our distinguished guest. sitting on my right, we have a representative of one of the most valuable corporate partners, the chief financial officer of miller coors. earlier today, he said to the president's award on behalf of miller coursors. it is a distinct pleasure to introduce a special guest, the
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incredibly talented leanne womack. i would also like to introduce -- he has attended many of these events and he was one of the first sponsors. we thank you for coming. everyone can be seated. president harry truman commenting on the state of the country at the end of the second world war said "this is the hour to rededicate ourselves to the faith in mankind that makes a stronus strong." as we come together to show our respect and adulation and our
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support for our brothers and sisters who laid their lives on the line and they helped to pave the way for our great nation. we continue the promise that we will never forget the sacrifices, we will never forsake the families of our heroes, we will never allow the tizens of our nation to forward to get the long term community. we desire a safelace to raise our families. we are willing to do whatever it takes to fulfill the american dream. at this 29th more of service, we are honoring the lowest number of fallen soldiers in many years.
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some people wore badges, son were stars. they chose to do a job that will never make them rich, might cause them physical ailment, and in most cases they work overtime just to provide for their families. they know that their jobs are honorable and indispensable. only those who have suffered the loss of a father or a mother, a sister, a child, or a co-worker all know the sacrifices. that is why we will continue to
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dedicate ourselves to make sure that our nation will never forget of the heroes beyond today. this country was founded and built on people with dreams and the courage to take great risks. these are words that most officers downplay in their careers. many of them are the last one to talk aut it and they almost always said they did what they had to do. they are usually embarrassed b all of the alkylatecelebrations. we are supposed to flee danger is not run towards them. it takes a special breed to fight your nature and run to
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trouble. we will never forget the heroes anallow them to follow their dreams. god bless you, the families of our falling brothers and sisters. >> i am proud to introduce we and womac -- leanne womack.
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♪ >> ♪ i hope that you will never lose your sense of wonder if you'll always get your fill to eat but always keep that under, may never take once and will press for granted, the forbidden love ever leave you empty-handed
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♪ ♪ ♪
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there is a god there is a god ♪ sciee says it's all just circumstce like boss whole world is just an accident, but if you want to shoot that theory down, just look around ♪ there is a god there is a god
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there is a god thehow much proof do you need? oh, there is a god there is a god there is a god how much proof do you need? ♪ [applause] >> thank you.
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i would like to ask -- of the drugs hillary to approach the podium for her opening statements and welcome to this memorial service. >> members of congress, brothers and sisters of law enforcement and honored guests, welcome to the 29th annual fraternal order of police memorial service. i am the national president of the grand lodge of the fraternal order of police of salary. on this special occasion, we gather together to honor and pay tribute for the supreme sacrifice these men and women of law enforcement take. they did this with bally, devotion, our officers stand watch fulfilling their duties with courage and commitment. they have put themselves in harm's way working tirelessly
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exemplifying their commitment to justice. fighting crime, violence, and terrorism for their communities and our country. from the first cell does held here 25 years ago, the fraternal order of police and of sillery continued to harbor the responsibilities to make this service scial for moms and dads, husbands and wives, brothers, sister sons and daughters, who are here to honor these brave public servants who have given the supreme sacrifice. 25 years ago, i attended my first memorial service, each year, there is a list of names of heroes in our program. we made changes to the service but the one thing that never changes is the paying in the hearts of those in attendance because of the price that their
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loved ones paid. we learned their sries of how the officers died, we see your pain and we hear your crying and we see the many co-workers who along with you are trying to cope without a loved ones who made this trip necessary. a hero is a person who in the opinion of others as distinguished courage and has performed a heroic acts. i find that there is over 1000 websites that qualify a hero. i have selected these five essential qualities -- surface, conviction, selflessness, bravery and sacrifice. these qualies i believe to be a powerful character trait of those that we honor here today. each of you wearing a name
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badge or a ribbon identifies you as a surviving family member for corkers trying to except that life must go on. you are surrounded here by thousands who share in your grief. most importantly, we offer support to u.n. your family's. when an officer dies, we are informed across the nation that we have lost one of our own. there is an ache in the hearts of others but the thin blue line stretches across the u.s. supporting and offering prayer. strangers will line the streets waving flags. law enforcement is a respected professi. one officer dies, thousands
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more -- to serve and protect. i share with you a poem entitled -- "like the officers in a television show or the sheriff in the wild west to shoot their foe the officers' shoes to work for a greater good and they stand tall. each day, they have to do is to fulfil. when the call goes out that one of them is down, with loyalty and amazing speed, the fraternity will gather around. they protect us from ourselv, they protect us from each other. no finer service can be performed bantustan in harm's
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way for another. it is impossible for us to understand a loss thatou have suffered. we hope that you will feel love and prayers being offered to honor your loved ones. our mel is to never let them walk alone. i believe that love prevails, tears clans, and memories comfort. our hope is that each of you this week and today except the open arms of the fraternalrder of police and of hillary for the supreme sacrifice paid by your loved ones. may god bless you, god bless our military men and women serving, and may god bless each of you who did they continue to serve our law forcement. thank you.
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[applause] >>
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>> ♪ the realization of their sacrifice this will bring this humble person to their knees they gave their lives and i will soon not forget. when we see -- give vent and the price began to play
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♪ they might be gone but not forgotten they live in me and you. we lean on the fallen. yes, we lean on the fallen. i think of all the friends and family is left behind
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we need to think of how they lived instead of how they died i get to hear the voice of god. -- we lean on the fallen because they stood for honor and truth they might be gone but not forgotten. they're living in me and you.
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we lean on the fallen. yes, we lean on the fallen learn from mistakes made in the past each time we go to work, maybe i'll learn made those heroes lived forever through you and i we all -- the thin blue line
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for all the times that used stood watch for those who never knew know that god is always watching over you god is always watching over you we lean on the fallen they might be gone but not forgotten we lean on the fallen yeah, we lean on the fallen ♪
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[applause] >> following that, a look at upcoming senate and house primary races with several reporters and a political professor. that's at 7:00 a.m. eastern here on c-span.
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[captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> monday, campaign rallies for pennsylvania's 12th congressional district candidates. mark kris with former president clint in johnstown, pennsylvania. then a rally for republican tim burns with scott brown in washington, pennsylvania. that's monday at 8:00 p.m. eastern on c-span. now, an update on some of the latest changes to the financial regulations bill. >> watch this week's hearings on the gulf of mexico oil spill, or
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look back at the exxon valdez hearings from 199 at the new c-span video lie. over 160,000 hours of searchable programming. it's washington your way. search it, clip it, and share it, every program since 1987, available free online. >> the senate returns on monday at 2:00 eastern to continue work -- >> we are joined by steven sloan of congressional quarterly. what are some of the key changes that have happened this week? >> dick durbin had an amendment that he put up for many years that's been successful through this week and basically allows the federal reserve to limit the fees that debit card issuers can charge to retailers for processing a debit card.
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so when you slash your card, the fed will be able to limit the amount of fees that the debit card issuer would charge 7-eleven to process that transaction. >> one of a number of amendments considered over the past week. how are these changes to the regulations bill -- what's that going to do when the bill comes for a final vote to the floor? >> well, i think it remains to be seen. depending on how these changes are perceived, they could make it harder for people to decide how they're going to vote. if it's seen that these amendments are making the bill more extreme, than it was when it came to floor. so it has the potential to sway people. >> you wrote that the senate democrats have to overcome tension in their own party. >> there's some frustration at how the amendment process has worked out, whether everybody can get their amendment to the floor. the democratic senator from
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north dakota had an exchange with senate banking committee chairman chris dodd on the senate floor thursday where he basically expressed his frustration that his bill, which had advanced speculative credit swaps, was being advanced to get to the floor. chris dodd said he understood the position he was in, but dodd has to get this bill moving and can't let it be waggede down. >> what are we going to see next week as the senate returns? >> one important amendment is going to be one from -- it would allow each state to set a cap on excessive interest rates that are charged by credit card companies operating in that state. this is something that the financial industry is really going to fight hard against, but it seems that we're seeing a tide shifting more in the direction of an anti-bank
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sentiment. so this is kind of one of those amendments that might have seemed farfetched at one point, but could really gain some support if it's seen as hurting the banking industry. >> what can you tell us about the latest timetable that majority leader reid has for the bill? >> this is a motion that if it's approved, it would limit amendments that could be filed to the amendment to only those that are jer maybe, so it -- germane, so it gets the process going. the vote meeting not happen until wednesday. we're still thinking this is something that could happen by the end of next week if everybody gets their ducks in a row here. we'll be voting tuesday, wednesday, and thursday next weekend. we could still have voting on amendments on friday. so we should wrap this bill up by next friday. >> an update on the senate's financial regulations bill with steven sloan of congressional quarterly. thanks for the update. >> thank you. >> the senate returns on monday
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at 2:00 eastern to continue work on the financial regulations bill. votes on several amendments are scheduled to get under way around 5:30 eastern. due to the hundreds of amendments being offered, we expect majority leader harry reid to fire a motion to limit debate on the bill early next week. if that passes, a final vote could take place by mid week. follow the senate live on c-span 2. and the house returns on tuesday at 2:00 eastern to debate several bills, with votes on those at 6:30 eastern. also next week, the chamber plans to return to legislation that reauthorized science and technology programs. the house also takes up a bill that extends tax credits for businesses and unemployment benefits. the house is live on c-span. this is c-span's "america and the courts" earlier this month, supreme court nominee elena
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kagan nominated a discussion. she spoke at the sixth circuit judicial conference in columbus, ohio, and was joined by former u.s. solicitor general paul clement. if confirmed, ms. kagan will replace john paul stevens. this is two hours. paul stevens. this is two hours. >> good morning, ladies and gentlemen. it is my privilege this morning to welcome all of you to the 70th sixth circuit conference. i am quite sure i am right about this, the biggest one we have ever had. if you don't all fit in the room, we are sorry. [laughter] a tremendous amount of work and planning has gone intohis,
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and at this point i sort of feel old enough that i could have been at every one of these 70 conferences, but honestly i'm not. but i can assure you that having observed and to a lesser extent participated in the planning and preparations for this conference, it has been an enormous undertaking, and at best we are only crossing the starting line at this point. he would encourage each one of you in your comings and goings over the next couple of days, when you encounter clarence moderate objection, and alison and his wonderful assistants who are at the registration tables and virtually everywhere else where something needs to be done, to express your gratitude for everything they have put io this. similarly i want to challenge
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judges jeff sutton and guy cole, the coceres for this event -- the co-chairs for this event. they have coming up with speakers and a set of programs that are absolutely outstanding. if i've learned anything over the years, the popularity of the speaker is inversely proportional to the amount of time they speak. if you have a cell phone, blackberry, i phone or anything else that makes annoying noises, we would appreciate they be turned off. if anyone has any security concerns at all during this conference, the united states marshals have a presence in meeting room 22 on this floor. if you see any of the marshals,
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do take the opportunity to thank them for their service. this can't be the most exciting duty post that they ever encountered. i want to remind everyone to please wear or otherwise display your conference badge at the conference and the banquet. this is a security matter. so everyone is aware, and there is no way you couldn't be, portions of this conference will be taped by c-span and cbs. although this morning is the formal opening of this year's conference, we have already had a great foretaste. yesterday afternoon we were treated to a wonderful presentation by the senior vice president of the metropolitan museum of art on the speech by abraham lincoln when he visited the ohio state house in 1859. i have ctified that on very
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infrequently have nongovernmental groups be allowed to assemble there. our thanks to them. i don't think i have ever seen that much seafood in my place in my life. the conference always benefits from the participation of the life members, and it's a fact that after you go to that reception, you don't need to go to dinner, although i notice that most people do anyway. we want to thank tom schuchat and the life members committee for arranging that reception and all of the life members for making that possible. this morning i want to make special mention of the fact that justice sfeefs is with us again this year but for the last time as our circuit justice. he has been a faithful tendee as our circuit justice for many years.
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i am sort of tempted to say, but it is not accurate, that the mind of man run eth not to the contrary. but as you know, he has recently announced his well-deserved and well-earned retirement, which will commence at the conclusion of this supreme court term. we look forward to the interview with justice stevens that will take place, and at that point we will introduce him with all the appropriate bells and whistles. and should he decide that retirement is less appealing, the sixth circuit extends to him the warm invitation to come back and sit with us and perhaps subject himself to review from some of his former colleagues. [laughter] >> and we are extremely honored that we will have both the attorney general, eric holder and the chief jusce of the united states addressing us later on in the day. with that, it's time to begin
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the first session of this 70th sixth circuit judicial conference. the supreme court update, presented this year by a panel moderated by elena kagan. ms. kagan doesn't have any reason to knowhis, but she and i actually have something in common. when she had not yet reached the age of 40, she was nominated to the federal court, where she learned the wonders of the judicial selection process and the definition of the word soon in the context o that process, wch pretty much means between now and the time of your natural death. >> maybe. >> and sometimes in that process, and maybe your natural death, if it gets bad enough, did you at some point during that process she saw her future as a federal judge at least at that point disappear. so i suspect that she would
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have been entirely able to sympathize with me in my experience many years before that when i was undergoing the same judicial selection process . one evening i got the definitive telephone call that i was not going to become a federal judge. i was at home that evening watching "monday night football," and after taking that phone call, i went back into the library just in time to see frank gifford describe the last play, which was a blocked punt, and i wrote this down. he said if he had been where that ball would have gone, he might have gotten it. i thought, that's me! [laughter] well, ms. kagan went on to bigger and better things, becoming a tenured professor and dean of the harvard law
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school. i could point out that is considerably more renissan tiff than becoming a federal judge. a graduate of princeton, a graduate of harvard law. professor o chicago law and professor and dean at harvard law. i am sure she knows that solicitor general is the only officer of t united states required by statute to be in the words of the statute, learned in the law. now i don't want to be stepping on any toes, particularly looking forward to lunch today, but the fact is that although the judiciary act of 1789 did require that the attorney general be learned in the law, with the creation of the office of solicitor general in 1870, that requirement was dispensed with. [laughter] >> maybe it is the requirent
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that you be learned in the law that explains the letter some 70 years ago that was delivered without incident or delay to then solicitor general robert jackson, which was addressed, the slestial general, washington, d.c. >> that would be the same robert jackson who became a justice of the supreme court, where he famously wrote a accidenting >> dissenting opinion as a win fall as anything left to the taxpayer. in any event. slestial or not, she now finds herself on the short list to fill the vacancy left by justice stevens. this is a mixed blessing for us. we will have to be
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understanding and anesthetic should she opt to be a bit circumspect in expressing her views on the topic at hand or anything else. but that is not moderating the honor she does us in moderating this panel. ladies and gentlemen, the solicitor general of the united states, elena kagan. [applause] >> thank you so much. thank you for the invitation. thank you, judge, for that wonderful introduction. i'm not even going to attempt to be that funny. we have two terrific panelists here to discuss the supreme court term so far. and as the judge says, i will moderate the proceedings i figure in my regular life, i
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answer questions all the time, and so it was actually something of a relief when she said we have a great gig for you. you don't have to answer any questions. you can just do the asking of them. i said i would be delighted to do that. we have two marvelous people here who know an extraordinary amount about the supreme court. to my immediate left is the founding dean of the university of california irvine school of law. as a former dean myself, i can tell you that just dean-ing is hard enough. but to the founding dean of a law school is a special kind of challenge. and he is doing a simply extraordinary job. it is the talk of the law school world, in fact, what is
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going on at the university of california-irvin and how quickly he has put the law school on the map and the extraordinary things he is doing there. all of us in legal education look forward to an absolutely spectacular deanship from him. previously he taught at duke law school, and before that at the university of california school of law. his sexeer tees is federal practice, civil rights and appellate litigation. he has engaged in numerous pro bono practice activities. inincluding arguing before the supreme court and appellate courts of the united states. helayed a role in drafting a new city charter for los angeles. i am pleased to welcome the
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dean. [applause] >> and paul clement is the head of the appellate practice currently at king and spaulding. but before that, he was the 43rd solicitor general of the united states from june of 2005 until june of 2008. three years is actually a pretty good stint in the solicitor general's office as solicitor general. in fact, former general clement's practice in the office goes back w before that. he served for nearly a year as acting solicitor general, and he served as principal deputy solicitor general for over three years. i just said to paul prior to this panel, i just came from the seventh circuit conference, and i will tell you that if the exegs were one of attendae,
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you win. >> but i was introduced at that conference by judge eaerbrk, and the judge introduced me as having the second best legal job in america. he went on to say the first best legal job in america was to be the deputy solicitor general, a paul clement has done both. his more than seven years of service in the office of solicitor general is actually the longest period of continuous service in that office since the 19th century. he has argued over 50 cases before the united states supreme court. he is one of the incredibly tiny group of people who can claim they have argued more cases than they have years on the planet. did you reach cases or 40 years first? >> 40 years, unfortunately. >> too bad.
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50 cases, and more than the number, paul complement is known at the supreme court and across the supreme court bar as simply the gold standard in supreme courgument. the solicitor general's following pool is always questioning that. are you as good as paul clement , and the answer is going to be invariably no. this is a fabulous panel, and we will get right to it. the way we are going to work this is we've split up the supreme court term into various practice areas, and eitherer win or paul will speak for 10
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minutes about each practice area and then turn it over to the other person. we will go through a number of practice areas in that fashion, and i hope we will have more than sufficient time to open up the session to some questions from the floor. before we go into particular subjects, maybe if we could do a little bit of discussion of just sort of general themes about this term and the court, what has happened so far, and what you might expect to happen. and maybe in the context of that, you could also talk a little bit about the change of personnel that we did see in the court. we have a new justice, justice sotomayor, and whether that has affected anything, and if so, how. >> i will call on erwin first. >> thank you so much. thank you for the kind sbrougs. it is a pleasure to be at this conference again, and an honor
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being here sitting between the current solicitor general and the previous solicitor general. feel like the answer to the says my three question which of these things doesn't belong. over a five-year period, there will be four new justices on the supreme court. we have gone through a long stretch of no new justices, and now not quite half of the justices will be replaced by justices. once more it is the anthony m. kennedy court. if you look at each of the prior foreyears of the roberts court, anthony m. kennedy has been in the majority of more 5-4 decisions. last year, kennedy was in the majority of 92% of the cases. the most of any justices. last year 73 cases were zed, 23
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were 5-4 decisions, and kennedy was in the majority in 18, the most of any justice. i think you can get the best sense of-year all ideology o the roberts court by focusing on the 5-4 decisions where the justices are split along ideological lines. last year, there were 16 of them on one tile, roberts, -- as kennedy was with the conservatives in 11 out of 16 and with the liberals in five out of the 16. that was the pattern. kennedy sides with the conservatives more than twice as often as with the liberals. the most important one in this term, citizens united. the same thing. all the lawyers who appear before the court are aware of
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this. i filed a brief in the court, and frankly it was a shameless attempt to pander to justice kennedy. if i could have put justice kennedy's picture on the front of the brief, i would have done it this. justice sotomayor's presence doesn't change the makeup of the court. she might have her greatest effect behind closed doors. maybe she can persuade anthony m. kennedy in cases where david couldn't. in the long-term, justice sotomayor and the new justice
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could be partf a majority that could change the ideology of the court. >> let me also thank you for the wonderful introduction, and let me echo that i am so happy to be here and part of this panel. let me pick up where he left off and say there is certainly a great deal of truth to the idea that in so many cases, justice kennedy holds the critical vote. let me say one thing that reinforces that and one thing that cuts other way. it may be that justice kennedy's prominence on the court in these 5-4 opinions will become even more, if that is possible, prominent in the wake of justice stevens' retirement. in addition to casting the critical vote, it will nowe the case in every case in which justice kennedy and the chief justice and justice scalia disagrea, i.e., in every case
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where justice kennedy sides with what might loosely be described as the liberal side of the vote. to the extent he is inclined to keep the opinion and write it for himself, that wl be his option. the one area of the law where the 5-4 where is justice kennedy going to come out dynamic does not hold true increasingly is the criminal docket of the court. in an unusual twist for those that don't watch the court very closely, in some ways on the criminal docket, the key swing vote is actually justice scalia. there are a number of cases, sixth amendment cases, cases involving the confrontation clause, where justice scalia has really been the criminal defendant's best friend.
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he along with justice stevens have fashioned an unusual majority. typically when justice souter was on the court they stayed together. those cases are worth focusing on because as he said in the main, i think the consensus in washington and other places is that these -- justice sotomayor's replacement of justice souter and a replacement of justice stevens may not change the dynamic in some of the 5-4 cases that divide along traditional lines on the other hand, in some of these criminal cases and the confrontation clause cases, it is possible that a substitution of justice souter and stevens may impact the court's direction in those cases. i would be the last person who would claim to be privy to the obama administration's
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selection process, but i rather doubt the litmus test applied is the prendi test or the crawford test. i do think these cases will be an interesting area to watch as the court moves forward let me finish with two other thoughts. one is to foreshadow a bit. one area where we may see an interesting alliance son the criminal side is on the honor services fraud cases, which we are going to discuss later. the last thing i will say is to pay attribute to justice stevens. i think it will be -- you can't talk about justice stevens leaving the court and the impact that that will have on the court in the sort of simplistic terms that, well, he will be replaced by a president who, if he gets the kind of nominee he isooking f,
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there won't be a change in the bottom line in my cases. you can't underestimate the influence that justice stevens has on his colleagues, the way he proceeds, the wisdom of all those years on the federal bench, his gift for seeing a way to five justices for a proposition. i really think that it will be almost impossible for the president to replace all that wisdom, the fact that he is the senior associate justice. there are a lot of different ways you could point to that. given the way that i've been making my living the last couple of years, what presents itself to me is his presence in oral aument. he approaches an issue and asks the questn in a nice way, and a lot of times the candidate has a knife in their back before they have realized what has happened to them.
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he has a way of getting to the nub of the case, and that is going to be something really impossible to replace. >> that is for sure. justice stevens' typical first line when he asks a question is may i ask a question? no, justice stevens. [laughter] but this remarkable politeness, courtesy. he has this incredibly lovely manner on the bench. his questions just stop you in your traction and make you realize that you cooperate get to the place that you were really hoping to go -- couldn't get to the place you were hoping to go. i think advocates find this, that his questions are expressed most politely, but are as deep, penetrating and effective as y asked from the
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bench. he is a man of extraordinary talents, and that among them, in terms of changing the focus, changing the flow of an argume. if i could, before we get to particular areas, erwin started by talking about the typical 5-4 cases. paul, you had one of tho cases this year, which was the kenny a. case. i don't know if you want to describe that case now or later, but if you could talk about what it means when you have one of these cases, that you just sort of know from the start is going to depend on justice kennedy's vote, how that means you argue a case like that? >> we will talk about the sort of substance of kenny a. in a bit, but to answer the process question of how you approach one of these cases where you think justice kennedy holds the balance, i think the key is to obviously try to craft an
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argument is that is going to attract his vote but at the same time not lose sight of the fact that he is only one justice, and you have to build a coalition of five justices to get the result you want in a case. i think that case may also be a case that illustrates that sometimes justice kennedy can affect the dynamic of a se independent of kind of where he comes down in the final resolution,hich is to see i look at the kenny a. case and the way it was argued, and the way that the oral argument came down, and it seemed lik justice kennedy was really wrestling with the issue and thought it was a very difficult issue. without getting into the substance of the case now, on the question presented in the case, which is whether you could ever have enhancements above the load star amount in a
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attorney's fees case, the cord decided 9-0 by my count that you could have enhancements. from the oral argument itself, it is not clear that nine judges were there for oral argument. there were some justices that seemed to think the simpler bright line rule was is imply that you could never have an amount before the load star amount. i think the fac that justice kennedy was not persuaded that that bright line no enhancements rule should carry the day not only affected his opinion, but carried the way that all nine judges awe greed in that case. the bottom line is the key is you have to have a focus on justice kennedy, but you can't lose sht of the other justices. we will talk about a case that you argued, elena, the salazar
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case, which is a good example of a situation where justice kennedy may be the determinative fifth vote, but it is not as simple as just getting his vote, but you have to get a coalition of five judges who may have differing views, and that is what you did. >> let's talk about some cases. it has been a big first amendment term, citizens united principally, but stevens and the humanitarian law project. >> n matter what else the supreme court decides this year, citizens united versus the federal election commission will be the most portant decision. elena argued it well. if my 11-year-old daughter had argued the case, it was going to come out 5-4. it just shows you at a brilliant advocate can do. the opinion was 157 pages long.
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this reflects a trend. as the size of the docket has gone down, the length of the opinions has gone up. it is not unusual to have opinions of this length. one of the things i have to do every summer is edit down cases for our case books. there is no way to edit down a 157-page opinion for law students in one night. i am starting a new campaign. word and page limits should be imposed on supreme court opinions. [laughter] everyone is familiar with the case. it involved about the mccain- fine gold finance campaigns. it prevented such ads over the broadcast media 30 days before
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the general election. the supreme court declared this provision unconstitutional. kennedy writing for the court, and the court split along now-familiar ideological lines. i thought i would talk about the significance because it is such an important case in terms of the police system, in terms of the doctrine of the first amendment. in terms of the political system, i think it is going to be a long time before we can fullyssess what it means when corporations and unions can spend as much as they want for the candidates they want to get elected orefeated. there are some who say it might not have that much of an affect. they point to the states that have allowed such spendingnd said it hasn't seemed to have a dramatic consequence. on the other hand there are those o believe the ability of corporate wealth has a tremendo distorting effect of
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the american political system. my own concern will be what will it mean in judicial elections, especially in states where increasingly large amounts of money are spent to get people elected for the bench or defeated for the bench? what might it mean for local elections where a particular corporation has the ability to outspend all others to get those they want elected or those they opposed defeated. it has great significance on a doctrinal level. three years ago in another case, the same five justices in the majority, again with justice kennedy writing, said that the first amendment protects only the rights speech as, quote, citizens. there the supreme court said there is no first amendment protection for the speech of governme employees on the job in the scope of their duties. now the supreme court has said that corporations have the same free speech rights as
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individuals. the court once more said that spending money in election campaigns is core political speech. what will this mean for other dobtrins of the first amendment and other laws restricting corporate uniospending. this case involved independent expenditures. there a federal law that says corporations cannot contribute money to candidates for elective office. and unions c't contribute money to candidates for federal elective office. can that survive at citizens united? justices scalia, kennedy and thomas had previous expressed they think that is unconstitutional. this case suggestion that justice roberts and alito will likely be with them. what will that mean if corporations and companies can contribute money, not just spend money independently? are there five votes to say
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that all restrictions on corey buickses are unconstitutional. one of the pillars of buckley case in 1976 is that the government can restrict contributions, but not expenditures. he the supreme court has expressed the view that that aspect of buckley should be overruled. my guess is there are five votes for that. it is notable that in citizens united, the court upheld the disclosure requirements by an 8-1 margin. i think the case is important on a injures prudence level. what does this say about precedent in the roberts court? in january of 2003, the supreme court, mcconnell versus the federal election commission upheld the same thing. what changed over seven years?
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did the court find some musty history that led it to believe it made a miss take? >> no, it was 5-4. justice owe connor had been replaced by justice alito, and that led to the reversal. >> we are going to hear a lot of discussion in the next couple of months about liberal jucial activism. i have been skeptical of that phrase. i thought it was a phrase that people use for decisions they don't like that. if we come up with a definition we might say well, the court is being active if it is overturning a law,estrained if it is up holding. it is active if it decid broadly, restrained if it decides narrowly. it is active if it is
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protecting rights that represent in the text or intended by the framer. restrained if adhering to the framers. i think brown versus the board of education would be a very active decision. that is the exemplar of what the supreme court should be about. so activism in this case is sruptive, not norm tiff. in this deaf yigs, citizens united is breathtaking in its activism. it overturned another case that allowed the government to restrict campaign spending. the court could have decided this case a year ago on narrow rms, but chose instead ask for rebriefing and reargument. here i have to disagree with
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justice scalia's concurring opinion. i find it very hard to find in the constitution the right of corporations to spend an unlimbed amount of money in elections. to me it suggestion that judicial activists can exist on the left or the right. the second case is united states versus stevens. >> before you go on, could i include paul in this discussion on citizens united, that maybe it is such an important case, we should you could r talk about that. >> sure. my own involvement in the court's campaign finance injureprunes goes back white a way. this aspect of citizens united goes on the increasing list of cases that i argued and prevailed in a case only to
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have the court later revisit the issue. it is an issue i have been dealing with for a while. i would say a couple of things about this area of the law. when citizens united came down, especially after the supplemental briefing order was issued, there was no great surprise that the court divided 5-4. i think the only spends left in the supplemental briefing order teeing up the continued vitality of mcconnell and austin on th point really -- the only real issue is whether the court would strike down title 2 on its face or as applied. in that sense, it wasn't any great suspense that the court did what it did. in some ways you could look at this case and say these five justices could really kind of
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take the law in a very different direction in a lot of different areas. one reason why it would be a miss take to overreact, there are very few areas that justice kennedy feels as strongly about and as strongly that there shoulde bright line rules as in the first amendment context. if you look back, he has always been consistently very strong about taking a pro-first amendment view in the campaign finance area. austin is a relatively old precedent, but it is not so old that justice kennedy was n on the court when it issued. he was in dissent in austin, and this is one area where he has charted a course from the beginning. i argued other cases regarding other provisions of the mccain-fine gold when alito coming on the court. those were cases where the government defending the statute lost 5-4. it is clear there are five
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justices on these independent expenditure issues where they feel very much that the first amendment should prevail. that said, i am noture that is going to necessarily spread to other areas even to campaign finance law. the first case i argued was a case called beaumont. the court was 7-2, including justice kennedy, distinguished contributions from independent expenditures. so it is less clear to me that the court will continue to extend this rule about independent expenditures to contributions. i think in some sense the undercurrent of theecision is that independent expenditures do not present the same kind of questioned pro quo that contributions do. and quid pro quo is one area that the court will continue to
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recognize. let me say one other thing about citizens united and that trying to capture the dynamic. the president criticized this decision in his state of the union. it is something that he and his spokes people have continued to push it is an issue to where kind of an unusual degree the court has been criticized in the public process as being out of touch. the one thing i would say is that i really think the five justices in the majority could care less. the chief justice might have taken umbrage at the location at which the president leveled that criticism. but i think that the reason the justices in the majority don't care about this criticism, they would say this is not an activist decision. they would say it when an act of congresss struck down. here the first amendment is
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relevant in their view. i think when they are vindicating the first amendment in what they view as a counter majorityarian way, they think that is exactly why we are here, t enforce that in these situations. >> erwin, go on and tell us more aboutthe first amendment. >>ure, the other case i was to address was the united states verse stevens. it involved a provision of federal law that outlaws selling, possessing or distributing pictures of animal cruelty. the first circuit found that violated the first amendme. the supreme court affirmed. chief roberts writing for the agreement. they said it was an analogy to
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child pornography. they said the government can ban possession of child pornography as a way to drive the mart. the government said likewise, in order to protect animals being used in these snuff films, the government can issue punishment. chief justice roberts rejected that argument. he said the vernment of course can punish animal cruelty, but it is very different to punish speech about it or pictures of it. the court refused to create a new categorical exception as it did for child pornography, and it refused to accept th argument that a constant restriction of speech would meet strict scrutiny. right after this case was decided, the supreme court agreed to hear a case next year
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involving a california law that prohits renting or selling violent videogames to minors under the age of 18. here again the court igoing be to asked to create and recognize new categories. never before has the supreme court dealt with the medium of videogames. surprisingly, the supreme court hasn'tealt with violence in the first amendment context. as i think about with citizens united and not wanting to create new exceptions from the first amendment lead me to wonder what they are going to do next year in this new area, violent videogames. >> as you said, the government's principle argument in stevens was it was like ferebe, that it was meanto address and indeed the only way of addressing the underlyg
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conduct, as opposed to the depictions of that conduct. what is your understanng of why the majority rejected that view? is it just the difference between children-and-mals? was it something else? does it express something like a dislike of ferber itself? >> i think it is the difference between children and animals. there is such a compelling difference in protecting children. there is no way to be able to dry up the market for child pornography without punishing possession. the court is afraid to go forward further with that. what about the other things that are undesirable? if we can ban the speech, it would go against the activity. >> holder involves a provision
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of law, 18 united states code, and it prohibits the knowing provision of any service, training, expert advice, assistance to people envaging in tariffs activities. in 2004, congress amended the statute to clarify some of the definitions. the ninth circuit found that the training and service parts of the statute were still imper miserably vague. the the concern here is could it be applied to a group seeking to provide humanitarian assistance? what does the word knowing mean in this context. they urged the supreme court that even if it is vague, the
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court should find within the statute an intent requirement. the statute is important in many terrorism prosecutions. the first time the supreme court has dealt with the first amendment in the conte of the war on terror. there have been a number of supreme court cases involving detentions and military tribunals, most of these that paul argued expertly. but this is the first time the supreme court has dealt with it in the context of the first amendment and a statute that is used for so many of these prosecutions. >> paul? >> i just wanted to up to date score the point he made about the humanitarian law project. if you think about the government's response to terrorism in the wake of 9/11, both was was done on the military detention side of the ledger, but also what congress did in trying to amend the statute, they are really responding to the same impulse,
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which is that in confronting terrorism where you have acts of violence with such prem potential damage, including acts in ich the individuals will take their own life in the process of creating all these other casualties, in that context, the normal criminal process and its insting that the way you -- ins contingent with the way -- instinct on the way you deal with criminal acts is not responsive. you want to deal with it earlier. the effort there was to go outside theormal article three process and to detain people preventatively based on something less than you would have to show under an article threesome. the other way to go in an article threesome is to try to define criminal activity in a way that essentially allows you to get at activities that are
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more incoate than the regular syst. you try prohibit material support of terrorism. i think that any way you try to deal with pushing the horizon out of trying to deal with crimes before they occur, or trying to deal with preview take tiff -- preventative efforts is the way to deal with it. i think it is interesting that the court is confronting this issue already having deny with the preventative detention cases on the military side of things. >> paul, can you ask you to go out on a limb and ask you how you think it will come out? >> you can ask me, but that doesn't mean i have to answer. i honestly don't know. i would love to know your
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perspective since you argued it. my read of the transcript is you did a wonderful job and that the court was hard to read. i really don't know how the court will come out. >> it was aually a case which is unusual on some of the kinds of cases that e s.g. argues. some of those cases are the typical 5-4 cases where one part of the court is giving one lawyer a hard time and the other partf the court is giving the other lawyer a hard time, and you are trying to figure out who might hold the balance. but i think this was a case where the entire court was struggling over the issue and where all the justices were asking very pointed questions to both me and david cole, and everybody was trying to grapple with the very hard issues that you have described in the case. >> paul, talk a little bit about some of the other first
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amendment cases that the court has heard this year not involving pure speech questions. >> i would be happy to do that, and i want to start with another case you argued very well, the salazar case. congratulations for prevailing 5-4. the salazar case is a case about the war memorial cross in the desert. the most obvious point is this case reinforces that no area of constitutional law has the same capacity to divide and really splinter the court as the establishment clause. this is a case that i counted up ultimately as being 5-4, the nine justices in this case produced six different opinions, but did not produce a majority opinion for the court. that is actually aeasonably
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patter pattern in establishment cases in the past few years. toake matters more confusing, the disposition on which i do think it was ultimately 5-4 was to remand this case to the lower court to reconsider its injunction. the lower courts had enjoined an act of congress that would have transferred the cross from public land to private land. that was enjoined by the lower courts, and so the disposition of the case is to revert and remand the case to the district court to reconsider that. even though that was the disposition, as far as i can tell from the opinions, only one justice actually favored a remand. the other eight justices in the case were really ready to decide this case. now i will let people guess who that one justice was. it was indeed justice kennedy who wrote the lead opinion that
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announced the judgment of the court to remand the case. to give you a flavor of the lineup of juds, lete first reinforce the background of the case. the procedural history of this case made this more complicated than your average establishment clause case. there was an original challenge to this cross, this war memorial in the desert, and the ninth circuit had held that the display of this on public land was unconstitutional, a violation of the establishment clause. its remedy was the government had to take down the cross. congress seeing this and seeing the prospect of federal authorities of taking down a cross in a long-standingar memorial thought about transferring the land to the v.f.w. while at the same time continuing to recognize this as a national war memorial. the lower courts enjoid that
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act of congress. the case came up to the supreme court. the justices in addition to wrestling with the establhment clause shuse had to decide to what extent the underlying case was before the court. the justices seemed to have said that all they were looking at was the land transfer statute. two justices, justice kennedy and the chief justice, joined in full in an opinion that strongly suggested that the display was constitutional, but the exact disposition was that the district court gave too little weight to congress' decision to transfer the land to private hands. th district court viewed it as a defines of an earlier order to take it down. justice alito joined the opinion in full except for the remand. he thought there was not an
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establishment claw violation, that there was no need for a remand. two justices, scalia and thomas, said there was no standing on pavon of the individual to challenge the injunction without regard to whether he had standing to challenge the original display. he didn't have the standing to challenge the transfer to private hands. three judges, they held there was an establishment clause violation with the transfer statute. justice breyer ruled only on injunction based grounds, not establishment clause grounds. he wanted to dismiss the writ as improperly granted. .
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>> the district court that approached the injunction that he found problematic and i suppose what one could say is in constitutional avoidance terms that there's a nonconstitutional grounds to reverse the decision maybe that's the route that he chose. he didn't put that exactly in the opinion but i think that may have motivated him to come to
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that result. >> eight justices were ready to decided case but it brings to mind another case in the establishment clause context where justice kennedy seemed t be the only justice who continued to like the distinction between cowen and valley forge. eight other justices were ready to decide one another whether there would be taxpayer standing in establishmenclause cases. eight justices seemed to suggest that the court's distinction was fairly incoherent. yet because of one justice and the disposition of the case that's what the lower courts have to continue to wrestle with. so these are very difficult cases for the court. they don't produce majority opinions. as a result they don't produce any further clarity in the law so that the next time the court approaches an establishment clause case there's no greater reason to think that they're
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going to come to a clear disposition or a majority opinion. and i think this is a frustrating area for the court. i can only imagine how frustrating it must be for other judges, district court judges and court of appeals judges trying apply these presidents. the best illustration administration is that lower courts in this case as so many lower courts have to do took the governing question from the supreme court as being the lemon test. now, this seems that when these casesctually get to the supreme court the justices agree that lemon test is entirely unsatisfactoriry and tend -- sometimes they do focus on it. there have been cases in the 10 commandments case was one where they focused on it. buso many of these cases, the lower courts and parties ha wrestled with lemon and the court goes on and decide it on some other principle. >> christian legal society? >> let me tlk about two other cases briefly that haven't been decided yet but have been briefed and argued and i think they're very interesting. one is the christian legal
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society against martinez case. this is a case that has a fascinating mixture of freedom of association rights, nondiscrimination prince and government funding principles all rolled into one. the issue in a nutshell is that hastings law school which is a public law school and so a state actor has a nondiscrimination policy for its students groups. so in order to get funding fr the school and be recognized as an official student group, a student group has to sign on to a nondiscrimination policy. the nondiscrimination policy at issue is still an open question after a supreme court argument. and i think that supreme court in this case had a lot of frustration because they wen't sure exactly what nondiscrimination policy was atish issue. the stated policy prohibits discrimination on a variety of grounds but a limited number of grounds including religion. and it creates this odd dynamic when applied to the christian
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legal society that a group that is definedded by religion, like the christian legal owe society, is not allowed to discriminate on the bases of religion. and that certainly imkates the freedom of association rights of the group. hastings also, though, stated that it had and the plaintiffs in this case stipulated to the existence of what was called an all comers policy, which basically said that every group had to take all comers and so the student reps group couldn't discriminate against democrats and so on and so forth. so much of the oral argument in this case was really some frustration on the urt as trying to figure out which policy was really before them. i think follow thing is a fair summary of the argument, which is that the courts seemed to have more sympathy for the all comers policy, though there was some sort of residual kind of question about why that policy really made any sense. why did itake any sense to allow every student -- to force
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every student group to take on people who did not believe in their basic prince. but nonetheless, i think the court was more receptive and more sympathetic to that policy. i think that some justices at least had some concerns that ere were unique problems when the government tried to tell religious groups that they couldn't discriminate on the basis of religion, that that actually may be a role that government shouldn't be performing. it's too burdensome on the freedom of association rights of the group. if you want i'll talk about the last case again that's been argued but not decided is a case called dill against washington. and although this wasriefed certainly as a first amendment case, it's not really a first amendment free speech case. i think ultimately it's a right to privacy case. and it's an unusual privacy case at that. because what's at issue here is whether or not snatures on a referendum petition will be -- which have to b of course disclosed to the person who gathers the signature have to be
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disclosed to the secretary of the state in counting up whether there's a reck which is it number of petitions. the question is whether those signatures that are disclosed for those purposes can also be disclosed to the public at large through the state public records act, kind of a state version of foia. and i think in this sense it's an unusual privacy ght becse you're taking participation in the government process, you're taking a signature process that's by its nature is to a certain degree public, but then you're saying at a certain point there's a limit on how far it should be distributed. two things i think are important about this case. one is the issue here is not whether or not there would be the possibility of protecting people against actual violence or actual harassment. the issue here was a broader clm that even in the absence of specific evidence that -- in the context of a particular referendum people had to be protected against violence or
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retribution. this is a case that suggested there's an even broader right. and that's the issue that was before the court. the last tng i'll say is that i think a lot of people in looking at this case saw this kiss kind of through the lens of some of the disagreement that is were engendered by proposition 8. they saw it through the lens of the court's decision 5-4 to not distribute the video from the constitutional challenge that's going on in front of judge wopner's court. the particular referendum here, even though it was a broader challenge, was a challenge involving the marriage issue. and so ace say, a lot of people were looking at it through the lens of those issues. and because of that i think some people were surprisedhat the justice that seemedd most hostile to the constitutional right in this case of oral argument was justice scalia. i think if you kind of back away from the particular context of th case maybe that's not
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surprising. because you had a litigant that was going in front of the court asking it essentially to develop a new constitutional right, a right to privacy that although moored to the first amendme i think could be somewhat described as somewhat penumbral of the first amendment. so in that case i think some hostility from justice scalia should not come as a shock. but i think for some people watching this course thinking about this through the lens of proposition 8 and judge walker's order were a little surprised. >> juste scalia's questioning was quite striking i think to everybody in the courtroom. he was extremely eloquent about what he termed "civic courage" and the need for civic courage in a democracy. so i think ople were surprised and struck by it. irwin. >> let me start with salazar versus bono case. i think its greater significance is what didn't happen. in the spring of 2005, paul and
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i were on opposite sides arguing a case in the supreme court, van orden versus terry which involved a 10 commandments monument that sits right at the corner of the texas ste capitol and texas supreme court. as i approached oral argument i realized i had no chances of getting the votes of chief justice rehnquist or scalia, kennedy and thomas. they had repeatedly taken the position that establishment clause does not require a separation of church and state but rather took an accommodationist philosophy. they said the government should regard it as violating the establishment clause only if it literally established a church or coerces religious participation or discriminates among religious secretaries. we both perceived that justice o'connor was likely the swing justice in that case. bringing up a question you asked earlier a reporter called bfore oral argument and said you cite justice o'connor 23 times in your brief. i said so? then we were both surprised --
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on the other hand, i was able to get justice o'connor's vote and lost 5-4 with justice breyer concurring in the judgment the majority with no majority opinion showing again what paul was saying a moment ago. but now with chief justice roberts and justice alito having replaced chief justice rehnquist and justice o'connor, i think the conventional wisdom is there are five votes for that position on the court that the government violates the establishment clause only if it literally establishes religion or coerces religious participation or discriminates among secretaries in giving aid. the question was how far would the court go in this direction in salazar versus bono? might we accomplish the same thing with regard to religious symbols by saying that no one has standing to challenge religious symbols because the majority perceives that no one is injured? justices scalia and thomas in their opinion concurring in the judgment in salazar versus bona the denied standing.
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plurality opinion by justice kennedy said that standing couldn't be challenged here because of the unusual procedural posture of this case, this was a collateral enforcement proceeding and standing hadn'been challenged in the original proceeding. but i do think that this is one of the areas where justice kennedy is significantly more conservative than justice o'connor, where there are five votes to change the law, and as i say, to me what's most important is it didn't happen in this case. now, elena, you asked the question what's expected to happen on remand. i think justice kennedy's urality opinion left no dubt as to where he stands on that issue and therefore where the majority is. he said that congress here was striking a delicate balance and he clearly approves what was done. now, i'm concerned what that's going to mean in terms of the doctrine of the establishment clause. now, if congress can take a cross that otherwise violates the first amendment and me it permissible by creeding ownership of the parcel of land
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to a private group could a city put a large cross atop city hall and make it permissible by giving ownership of that piece of the rooftop to a private group? it's not what's the distinction here. so again i think the greater significance that the court didn't decide. as the dean of a public university law school i am especially interested in what's going to happen in christian legal society versus martinez. i want to emphasize something that paul said that this case may we well turn out the justice read the record. the christian legal society stipulated in federal district court that hastings administered its nondiscrimination policy in an even-handed way. but if you read its brief to the supreme court, it's all about how hastings discriminated in applying its nondiscriminatory policy allowing some student groups like laraza to discriminate but keeping the christian legal society from doing so. so it was tt the christian legal society here wanted to
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move as far away from the stipulation as possible and try to argue the actual fact on the other hand, hastings wanted to argue to the supreme court entirely based on e stipulation and didn't want to discuss the actual facts. and that's what i think caused all the justices so much consternation in oral argument. the one thing that i would add to paul's descriptn of the case is the law school's interest in a nondiscriminatory policy. i as the dean of a public university law school want to be able to say that all student groups that are officially recognized that get school money should be open open to all students. if a group wants to meet without being accessible to all it can certainly do. so the students can meet privately. the students can get together with whoever they want. but if it's going toet government money, if it's going to be able to get the privileges that goes from being an officially recognized student group, there's an important interest in the government nondiscrimination. so in that sense i think this case, like say boy scouts of
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america versus dalen in 2000 posed a situation between the -- and to me that's what makes doe versus washington so interesting, the tension between on the one hand the free speech interest in nondisclosure to keep speech from being chilled versus on the other hand the free speech interest that's embodied by the washington public record act in having dissemination of information. >> erwin, there was a pair of important eighth amendment cases this year involving the punishment that can constitutionally be imposed on juveniles. let's talk about those cases, sullivan and graham. >> they're important on so many levels. joe sullivan was 13 years old in 1989 when he raped a 72-year-old won. for that crime he was sentenced to life in prison without the possibility of parole. terrence graham was 16 in the year003 when he participated in an armed robbery.
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one of t other participants hit a merchant over the head. he too was sentenced to life in prison without the possibility of parole. thus the issue presented by these casess, is it cruel and unusual punishment to impose a sentence of life without possibility of parole for crimes committed by juveniles. in january 2005, in roper versus simmon the supreme court said that it's cruel and unusual punishment to impose the death penalty for a crime committed by juveniles. and graham and sullivan are arguing to the supreme court that likewise life without possibility of parole was cruel and unusual punishment for crimes committed by juveniles. on the other hand, in 2003 in ewing versus california and lotier versus androtti the supreme court upheld very long sentences functionally for life without possibility for parole
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fo shoplifting. ewing was a man who stole $1,400 worth of golf clubs and got a sentence of life without possibility of parole for 25 years. and androtti a case that i argued and lost, my client received a sentence of life without possibility of parole for ooh 50 years for stealing $150 worth of videotapes in a k-mart in california. emphasizing great def rens to the state in determining appropriate punishments. ultimately the issue before the justices, is this more like roper or is this more like ewing and androtti? and that's how the case was briefed. in oral argument, chief justice rob shed hard the notion that age should be a factor that jury can consider but that there shouldt be a bright line rule that life without parole for a crime committed by a juvenile is cruel and unusual punishment. that was the law with regard to
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the death penalty before roper, that age was something the jury could consider but there wasn't a bright line rule. roper created a bright line rule. the question is will the court do so here for life without possibility of parole. >> paul? paul, maybe the most important civil rights case of the term, there's another about the statute of limitations, but maybe was a case that you argued which came in the guise of an atrney fee case. so talk a little about kenny a. >> i would be very happy to talk about the kenny a. case since it's a subject near and dear to my heart as i did argue the case. the question here before the court was the availability of attorneys fees under section 1988 for a successful action brought under 42 u.s.c. 1983, and in particular the question was as it was presented to the court and the question presented was whether you could have ever have an enhancement above and
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beyond the lodestar amount in calculating attorney's fees. this sounds like a very technical aspect of simply attorney's fees compensation and the like. i think i share your sense, though, that it's a very important case. because i do think that 1988 and the attorney's fees provision is really the provision that provides incentives for bringing 1983 actions and the extent to which therare robust incentives for bringing 1983 actions so that lawyers who bring those actions and are successful will be compensated, to the extent to which there are those robust incentives will determine how many 1983 actions are brought which in term will determine the extent to which the civil rights laws and the constitutional -- cotitution itself will be enforcedment court throughout the country. so i think the issue is quite important. as the issue came to t court, as i say the question was, should there be enhancements above and beyond the lodestar. this was an interesting issue from the standpoint of going
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back to the original legislative understanding. 1988 was passed in reaction to the alieska case. for years before that case courts had routinely as a common law matter, federal common law mart, had awarded attorney's fees in civil rights cases. ancient comes along and says there is an american rule. this is america. so absent a specific congressional authorization you generally don't shift legal fees to the prevailing party. congress reacted very quickly and passed what became section 1988 to provide the missing statutory predicate that alieska suggested was necessary. at that time there really was not such a thing, at least a well-established process as the lodestar amount. lower courts in the federal common law area had used kind of this was the era of the multifactor tests. they used the multifactor test to calculate attorney's fees. but immediately thereafter, courts started applying
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additional rigor to the process and used the lodestar amounts in calculating a reasonable number of hours times a reasonable hourly rate in order to come up with the lodestar amount. as first envisioned, though, this was very much a starting point for the analysis, not an ending point for the analysis. there was a possibility for adjustments ward and downward to the lodestar amount. in a pattern of cases, though, over a decade and a half, the court had kind of one after another rejected various bases for enhancing the lodestar amount. so in this case the petitioners, my opposing party in the case i think were certainly within their rightsto sort of ask the court, are there any circumstances in which enhancements to the lodestar amount were were going to be allowed. the court fortunately answered that question 9-0 that there are circumstances in which enhancements to the lodestar amount can take place.
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they specifically recognized that there can be in rare cases enhancements for superior performance anduperior results. there also can be enhancements for unusual delay and a few other factors. the court in the disposition of this particular case unfortunately for my clients decided 5-4 thathey would remand the case rather than simply affirm the sizeable enhancement that was awarded by the district court. of course, of the the optomist, we are going back to the district court that gave the initial enhancement. i think with the court reaffirming the availability of enhancements we're confident there will be some enhancements in this particular case. let me underscore the importance of the court reaffirming the availabili of enhancements in these circumstances. because the alternative really would be to have essentially a meter in these cases that could only run backwards. because once you calculate the lodestar amount, there are a number of bases for cutting ba on that with the benefit of
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hindsight you can see that areas of research or certain motions did not -- were not critical to the ultimate success in the case. so it's very easy for the meter to run backwards by adjustments to the lodestar amount and the like. and i think having at least the possibility in the exceptional case, the rare case for an upwarden hansment dud level the playing field quite a bit. i think ironically it maybehat primary effect of this decision that says that in some cases you can have an enhancements to the lodestar amount, the net effect of that may be that most of these cases will settle for something close to the lodestar amount. because now both the defendant and the plaintiff essentially have something to gain and something to lose over a dispute about the -- whether the lodestar should be adjusted, whereas if you had a system where the number could only go down there's really not much incentive for the state or the defendant in the particular case not to contest the fees amount. so i'm hopeful that this
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decision will be important, it will give an appropriate incentive to civil rights litigation under section 1983, but i'm also hopeful that what it will really produce is more settlements that approximate the lodestar amount. >> so justice thomas has a concurring opinion in the case in which he reads the majority's decision somewhat differently. he says that what he calls the decisional arc is toward simple reliance on the lodestar and against any enhancements upward. and although he acknowledges that court doesn't reject the idea o any enhancements in any circumstances, he says that this case is consistent with that decisional arc against hains. irwin, do you think he's right just as a descriptiveatter? >> yes. though i think it's a question of degree. i mean, paul did a great job arguing before the court in that case. the argument is therean be
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adjustments in the lodestar but i think it's also clear that's going to be more the exceptional case. then you get to how exceptional? that's why i say it's a matter of degree. and i think that's going to take the future to be able to tell. >> the only thing i would add, though, is i do thinkhat there were because of this decisional arc of prior cases, i think there was a real questio going into this case whether hains would ever be available. and despite what himself about anpinion that four other justices joined, i think the effect of justice alito's opinion for the court is to actually put enhancements on more solid ground than they were before this decision. so i guess i'll vote myself as an optomist on this score. >> ok. paul, a few important structure of government cases, let's call them. talk about those. >> sure. and we really have bothctions of the structure of government before the court this year, both the federalism axis and the
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separation of powers axis. all of the cases i want to talk about briefly have not been decided yet so that will keep my discussion of them short. but i can at least tee up the issues and essentially hopefully provide some direction about what to watch for in these decisions. the first case i'll talk about is another case that i argued a part of which is the mcagainst the city of chicago -- mcdonalds against the city of chicago. this is the case about wheth the second amendment which the court recently revised in the heller decision should be applied against state action and against the advocate in this case this was a little like almost going into a time caple and revisiting the issue of incorporation. that's an issue that i remember reading about in law school, but also thinking the incorporation debate which really occupied the court in the 1950s divided the court. they thought a lot about it. but that issue had largely been settled. and it may be that at the end of this case that is true, that court will make a decision whether to incorporate the
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second amendment and that will essentially be the end of the matter for the time bein so give you the background on the case, the city of chicago and the village of oak park have handgun bans that really are very similar to the ban that was at issue from the district of columbia in the heller case. for that reason it was no surprise th next major case that would involve a challenge to a handgun ban would come through the city of chicago and the village of oak park. indeed, the lawsuits in this case were filed litally the day that heller decision was handed down by the supreme court. so that morning the lawyers got a successful decision in heller. that afternoon they filed their complaint inederal district court in chicago. the issue came to the seventh circuit. the seventh circuit adhering to some old essentially preincorporation doctrine cases said that second amendment doesn't apply to the states. the issue was teed up before the supreme court. i think much of the academic interest in this case was
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generated by the fact that petitioners in this case, the mcdonalds petitioners, really emphasized in their brief the privileges or immunities clause and essentially asked the supreme court to overrule the slaughter house case from 1873. it's not thatoften that you go into the supreme court and your principle argument is to ask the supreme court to overturn one of its psidents. it's even more rare to do it for a precedent that's been on the books for over 100 years. but petitioners did that, recognize, the fact that there had been broad-scale across the political spectrum academic criticism of the court's incorporation doctrines. and many scholars of various different stripes had come to the conclusion that really the court made a wrong turn in 1873 and the privileges or imunits clause was really the right vehicle to incorporate the bill of rights. i think my client, the n.r.a., their briefs stressed the more straightforward path to
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inrporation, which would be an application of the court's due process incorporation cases. and so the issue came to the supreme court where the supreme court had to decide whether to incorporate the second amdment, it also had two alternative paths to incorporate the second amendment. i wouldn't want to venture a prediction about the case since it's still pending. as i say i represented one of the parties in the case. do i think it's fair to say that oral argument if it's any indication that courts seemed more sympathetic due process route than the immunity clause. >> the oral argument ha -- there were many remarks which expressed some degree of skepticism about academic theorizing. >> especially from justice scalia. >> i think he said at one poin to the attorney from mcdonalds, are you trying to be out for a law professor here? i wasn't surprised by that. since 1873, there's only one
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supreme court case that hasn't been overruled that used the privilege in use clause. and that was a case in 1999 that an use that protected the right to travel. and i think there is a reluctance on the part of the conservative justices on the court to open up a brand-new area of constitutional litigation, the privilege and use clause, especially when it's unnecessary. every prior decision with regard to incorporation has done so by finding the provision of the bill of rights to be included in theue process clause of the 14th amendment. it's such an easy path for the supreme court to do so here. i know that substance due process has negative connotations. i know that many have criticized from a framer's intent perspective whether incorporation is appropriate. but the reality is there's not a majority of the court that wants to reconsider incorporation. we take for granted that virtually all of the bill of rights applied to the states by incorporation of the due process clause. so i think it's natural that's the path the court would focus on. >> paul let's go back to you for
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come stock and -- >> i think come stock is a great segue case. because the incorporation case you can look at it as being an issue about the scope, the practical scope of the second amendment. but obviously increases is at the bottom a federal issue. there's a radical difference in the powers of the state and local governments if the second amendment is incorporated versus it not being incorporated. a case that prevents a more straightforward federalism question is the come stock case which i think is a case that has not got an tremendous amount of attention but i think ia very interesting deralism case. the basic statute at issue here is a federal effort to deal with sex offenders as they are released from federal custody. it provides for the first time a basis for civil commitnt of federal sex offenders as they finish their sentence. now, what seems a little bit unusual about this is generally one this about civil commitment of dangerous people as being a
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classic state concern. and to make matters kind ofism matter, you are dealing with a situation whose only real nexus to the federal government has just been extinguished. these people are people who are the concern of the federal government largely because they are serving in the federal penitentiary. and it's exactly the point at which they served their commitment to the fedel government that federal government comes in and swoops in and provides an additional basis for detention based on something that is a traditional state concern. this struck me as a case that really had the potential, even in a post-race world where the court had seemed to be fairly forgiving of federal intrusions and not particularly the majority of the court not particularly protective of state prerogatives, this seemed to me to be the case where there was a potential that court would see this in almost in the mode of the lopez gun free school zones where the federal involvement is sort of unusual. it comes in -- the federal nexus
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is a bit suspect, andhat there might be the possibility that court would revive federalism principles a little bit in the comstock case. perhaps because elena did such a wonderful job of the argument, perhaps for a variety of doctrine reasons. my reading of the oral argument this will not be the case that revives federalism. the majority of the court seemed like they were quite defend ex to the federal interest in this case -- recognized a federal role in the case. justice scalia seemed skeptical but he was really the major voice of skepticism in the case. if you look at mcdonalds and option together and if these end up with an assertion of federal power, either the federal court's power by amending the second amendment -- bysaying there is not a federalism concern with the federal
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government's treatmt of sex offenders, i think in the wake of those decisions it's going to be hard for get a great deal of optimism that there's going to be a vindication of state's rights anytime soon by the berts court at least in these areas of -- putting aside the 11th amendment in specific areas -- but in this particular sort of general power under the commerce clause and the like, i think these decisions if they come out the way that maybe they appear to be headed at argument will make it very hard to be terribly optimistic about the states' chances of prevailing in one of these cases in the immediate future. i'll just shift gears and talk to the other axis of the separation of powers and the structures of government which is the power -- the division of power among the three branches of the federal government. that issue is front and center in another case that elena argued, the case that i refer to affectionately as the peek-a-boo case. this is the case that challenges the composition and structure of the public accounting oversight
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board which was created by the sarbanes-oxley act as a way of trying to monitor the public accounting profession. the specific issue in this case that seems to have drawn the most of the court's attention is the so-called double four cause removal provisions. the officers of the peek-a-boo, of the board, are removable for cause by the s.e.c. and the s.e.c. board members themselves are removable for cause by the president, at least by common law understanding. the statute currently actually doesn't say. that but nonetheless, the court's taking this case sentially on the premise that there is a double for cause removal here. and it seemed like there was at least some sympathy for the idea that the double for cause removal provision interfered with the president's authority to remove individuals and have a robust removal authority. i'll say just two things abo the case. as i say it hasn't been decided yet. one is it's interesting to note
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that although the issue here at some sense is an infringement on the president's authority, and the justice department though it generally makes even good faith arguments in defense of statutes that, rule is generally relaxed in the context of article ii issues and infringements on the president's authority. so this is a situation where you might have expected that the executive branch's lawyers, the solicitor general, would not defend the constitutionality of the act of congress because there's a live allegation that infringes the president's removal authority. nonetheless, botthe bush administrationnd the obama administration has robustly defended the statute. so it will be interesting if the court ends up with a more rebust view of presidential power than the president's own lawyers in these cases. the second thing that i think is worth watching here is my own view is that if the court does find the statute unnstitutional it's most
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likely to focus on the double for cause removal provision. that's a provision that may be fixed easily enough. and so there's a sense in which this may be much ado about nothing. i thinthe interesting thing to watch here is whether or not there are five justices who embraced a fairly formistic view of the separation of powers. i think that would bed headline news here from this decision. there's been a debate going on among justices in the court for decades about whether the approach to separation of powers should be more formalistic, very bright lines, high walls of separation between and among the branches, or whether you should take a more formalistic view as embraced most i think kind of enthusiastically by justice white. i think this decision might be the first time that you see five very solid votes for a formalistic view of the separation of powers. that may not have big consequences in this case, but i think it may have important consequences going forward.
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>> quick on separation or federalism of powers. >> mcdonalds for a moment for what it might mean for tse of you who are judges, i think the key unanswed question with regard to the second amendment is what's going to be the standard of revie what's going to be the level of scrutiny? in district of columbia versus heller justice scalia said it's more th rational basis review. justice breyer arguinged it should be a rational basis test. a lot of argument was about the standard of review question. if the court gives some guidance there, it's going to matter especially as they define incorporation, a lot of state and local laws that touch upon firearms become challenged in your courts. i think the comstock case has the possibility of being the real sleeper case of the term. i think when constitutional historians look at the rehnquist court they will say the greatest change ins federal law -- limiting congress under authority section 5 of the 14th amendment, reviving the
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10th amendment, greatly expanding state so much immunity. this is the first supreme court case during the roberts era to touch on those issues. as it was briefed by the solicitor general's office the meaning of the necessary and proper clause only touched upon during the rehnquist decisions. interesting in 1977 in kansas versus hendricks the supreme court 5-4 ruled that states could have the indefinite detention of those who were sexually dangerous after they'd committed their sentences -- completed their sentences. andit was the five conservative justices who upheld the indefinite civil commitment and the four more liberal justices who dissented. now it would seem that it's the more conservative justices who would want to hold the federal -- would want to strike down this federal auority, wanting to narrow the scope of congress' power and the more liberal justices who might want to
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uphold this, not wanting to narrow congress' power for fear of civil rights laws and environmental laws in jeopardy. so what the court does here could be very important in the whole range of chlenges to federal laws. unlike paul, no matter what comes out in this case i don't think this is going to be the last word from the roberts court to federalism nor do i think it's going to close the doors on other federal laws -- those decisions of the rehnquist court were 5-4 with rehnquist, o'connor joined by scalia, kennedy and thomas. scalia, kennedy and thomas remain chief justice roberts and justice alito are just committed to states rights as were chief justice rehnquist and justice o'connor. finally with respect to the public accountability oversight case, i want to agree with what paul w saying at the very end. some conservatives including on the supreme court have long argued that there should be an unitariry executive. in 1988 when the supreme court upheld the independent counsel
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law in morris versus olsen, justice scalia was alone in dissent saying that independent counsel law was unconstitutional because the president should be able to remove those who are serving an executive function reporting prosecutorial intent many when samuel alito was a young lawyer in the reagan administration, he wrote memos strongly endorsing this unitary executive philosophy. if there are now five votes on the court to the unitary executive philosophy it could mean a dramatic change in the law. what might it mean for example with how the members of independent regulatory agencies are chosen and are removable and there could be five votes for that. we'll see when the case comes down. >> at the beginning of this panel, paul calledett which frequently flies under the radar screen even though it's a very substantial part of what the supreme court does. what the solicitor general's office i suspect i spend 40% of
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my time on criminal cases. and that's reflective in large part of what the supreme court is doingn its docket. this year might be a case in which some criminal cases fly above the radar screen, particularly with respect to the honor services statute. so why don't you talk a little bit about the crinal docket that supreme court started with those cases? >> sure. this involves a part of the 18 united states cod section 1346 in the falrod statute. it was to make crime the intangible right of honor services. what's strike something three separate cases before the court this term that involved that statute. one is a case called wyra versus the united states. he was a member of the alaska state legislature. he was about to leave office. he applied for jobs. ended up not getting any of
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those jobs. but he voted in favor of a bill that would have benefited one of the company that is he applied for a job with. he was convicted by casting that vote of violating the honest services. this raises all sorts of issues. does it matter that he didn't actually tangiblely benefit that, he didn't get the job in the end? what exactly does honest services mean in this context? black versus united states, which is argued the same day in the supreme court, involves conrad black who owned a number of newspapers. in selling them he made a deal with one of the subsidiaes of the company for which he was the executive to get a $5.5 million payment. and it was appreciate of feduciary duty it was argued. there was predating that was going on. he was convicted of violating the honest services statute. his company didn't lose anything that was tangibly measured. can there be a violation of the honest service statute in that
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context? and the case that's going to get the most attention in all likelihood is skilling versus the united states, jeffrey skilling of course being an executive of the enron company. and his challenge poses many issues. does the honest services statute require that government prove that an individual has a private game rather than something that the employer had gained? must it b a material breach of fiduciary duty? most important the skilling case, unlike the wyrak and black case raises constitutional issues. the most important is the claim that depending on how the courts interprets the statute it's untutionly vague. justice scalia last year in a dissent expressed grave concerns about the honest services statute and whether it was constitutionally vague. and of course if the court were to hold that in skilling they woul likely decide black and wyrak as well. so it's possible that all three cases could be decided on
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statutory grounds but it's possible to also be decided on the vagueness ground. maybe i could mention the fourth amendment cas last term there were a number of important fourth amendment cases. i think the most important was hearing versus the united states which limited the scope of the exclusionary role. it's striking to me this term there's only one major fourth amendment case and it doesn't come up in a criminal context but it's certainly very important with regard to privacy. it's a cas . antero versus kwan that was argued a week ago monday. jeffrey kwan was a police officer on the swat team in the city of ontario. he was issued by his department a text pager. and officers were told that they were given a certain number of messages that they could send. also the city of ontario had a licy that when employees including its officers used computers and other electronic equipment, they should have no expectation of privacy with
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their communication. in fact, the officers had to sign a written agreement they would have no expectation of privacy in using the text pagers equipment. now, the equipment didn't specifically mention text pagers because it was issued before the text pagers came out. but it was fairly broadly written expressly said you have no reasonable expectation of privacy. however, kwan's supervisor, the lieutenant who administered the policy, told the officers so long as they were willing to pay for over messages, overuse, no one would read their messages. there was another part of the policy that said that the city's equipment should besed only for official business. it said there could be "light personal use" defined as things like setting appointments, and said there cld be no sexually explicit messages sent. well, jeffrey kwan sent messages his wife, his mistress, and other officers in the
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department, and especially the ones to his mistress were quite sexually explicit. for a couple of months, the lieutenant just let kwan p for the over messages, the overuse. and then finally the lieutenant got frustrated with this and he turned to the service provider, arch wireless and said "let us see kwan's messages." he read the messages, and that then led to kwan and also his wife and mistress filing lawsuits against the city of ontario for invasion of privacy. the united states court of appeals in the ninth circuit in an opinion by judge ward kenlaw found in favor of kwan, the wife and the mistress saying th had a reasonable expectation of privacy that was violated. the supreme court granted the cert. there were so many important issues presented here. how is a reasonable expectation of privacy to be determined? can the goverent eliminate it just by saying have no ream
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expectation by the privacy? what's the staple of the lieutenant that says i won't read your mess ages so long as you paid for the georges. also in terms of technology, this is the first time that supreme court has dealt with the reasonable expectation of privacy in the context of the new technology. also, what if any is the reasonable expectation of privacy for the wife and the mistress? if an individual sends a communication to someone else by e sending or the giving up all expectation of privacy? or do they continue to have a reasonable expectation of privacy? my reading of the transcript of the oral argument is that the court was much more symphetic to the city of ontario than it was to kwan, but then i think the issue will still be how broadly or narrowly do they write the opinion >> paul, what do you think is going to happen to honest services prosecutions? >> well, i think they're probably going to have to be recalibrated after these decisions.
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because i do think whether it's unstatutory or constitutional grounds, the honest services statute will not have the breadth at the end of this term that it had at theeginning of this term. i underscore twooints about those cases. one is to echo something that irwin said. i think it's fascinating to look back a little over a year to an opinion where justice scalia dissented from the denial of services in that case. he went on for five pages about the concerns about the honest services fraud statute. somewhat ironically, that case least in his view encapsulated in a single case all the issues that are before the court in these three cases, whether you need private gain, whether you need an independent violation of state law, and whether the statu is unconstitutional and vagness grounds. in less than basically a year, it went from a sole dissent from
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denial of cert to the court granting cert in these three cases. i think it does go to underscore the point i made at the outset, that at least in some areas, not the fourth amendment area that irwin was talk about in the kwan case but in other areas justice scalia really has been a criminal defendant's best friend in some of these areas of the law. and i think his role in the honest services area will perhaps underscore that. the last thing that i'll say just by a word of what would happen at the end of this term if the court does strike down the government's prosecution in these cases this would mean in a single term that supreme court not only ruled for the corporations and citizens united but also ruled in favor of conrad black and jeffrey skilling. and i do think just to raise really in my own view a word of caution, i think all of those would be decisions that a majority of the court would feel very strongly were moored in the constitution or the statutes, be it the first amendment or the
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due process clause or the statute itself. yet do i thinkhat we might see something of a kind of populist backlash of the court that we have -- kind of a tenner that we haven't seen recently. i think historically there are many presidents for sortof a popular backlash on the course but i think the combination of citizens united and rulings in favor of conrad black and jeffrey skling could unleash something we haven't seen recently. >> so paul, last topic let's talk about the court's business cases this year. >> i'll talk about them just in an overview fashion. i think if you think about the first couple of years of the roberts court, there was a popular conception that the roberts court was a very probusiness court. and in a couple of different areas, including some ofthe early pre-emption cases of the roberts court, but also in some securities cases and the like, the court seemingly was ruling in favor of the defendant ins a variety of different contexts. now, my own view was that was a
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bit too simplistic with painting with too broad a brush that you had to really drill down before you could find some more meaningful trends. i do think if you drill down there are some interesting trends though i think this may be the term that some of those trends get reversed. let me point to two interesting trends. first in the area of antitrust cases, by my count the roberts court has had before this term eight antitrust cases. what is strike something that those eight antitrust cases the antitrust plaintiff has lost in all eight cases. even more striking, in the main with really only one exception these have not bn 5-4 cases. the courthas almost unanimously or with only one or two dissents been ruling in favor of the antitrust defendant and against the antitrust purchas. so in these eight antitrust cases there have been nine votes total for the antitrust plaintiff. and four of those came in a
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single case. so these have been lop-sided case ins favor of the antitrust plaintiff. -- against the antitrust plaintiff. this term the cour has a case called american needle wch addresses whether or not the nfl is a singl entity for certain purposes. i have to say i have some skepticism of that claim if onl because as a lifelong packers fan i don't -- i don't think a minnesota vikings jersey and a green bay packer jersey are close substitutes. [laughter] >> i'm not really interested in the vikings jer circumstances particularly one with the mber 4 on the back. [laughter] >> so i think this is a case where the antitrust defendants claim that they're a single entity to which the antitrust laws do not attach robustly is going to run into some skepticism and maybe the first case in the roberts court where the roberts court rule ins favor of the antitrust plaintiff. another case, series of cases where you see a real trend is in the patent area. and the trend here is that the
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court has been cutting back on patent protection but even more obviously has not been terribly defend ex about the one federal court of appeals that specialize ins patent cases, namely the federal circuit. by my count here you have seven patent cases before this term in the preme court. in those cases there were two recusals. so across seven patent cases there were 61 total votes that court had. in those cases, colltively, the vote to reverse was 59-2. so in seven patent cases the federal circuit got exactly two votes to affirm. so the supreme court when it's looked at and taken cases out of the federal circuit has not been defend ex to their ex per cease in patent and has taken a decidedly different view of the underlying issues. that too may change this term because the court has a very important patent case in front of it, the bilsky case,
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involving the scope of business method patents. and the federal circuit in this case both cut back on the scope of business method patents and rejected the particular patent at issue in this case. based on my read of the oral argument transcript, it seems veryikely that supreme court wi come tohe same disposition. so for the first time in the roberts court will affirm the federal circuit in a patent case. it may come up with a slightly different formulation. but i think the general direion of it which will be to cut back on business method patents will be similar to the orientation that federal circuit took in this case. so i think in these two areas we're likely to see something of at least temporary reversal of what's been a pretty distinct trend. the last cases i'll talk about very briefly are in the securities areas. the court had four securities cases on its docket this term which compares to five securities case ins the whole rest of the roberts term -- court. so this is an area where the court has really kind of taken a bunch of cases this term.
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in the two ces that i've focused on so far that have come jones case the merck case and jones case, in both cases the court has ruled in favor of the securities plaintiff and has done so unanimously in both cases. in the merck case there are difference ins reasoning and analysis, but the bottom line is both cases 9-0 rulings in favor of theecurities plaintiff. so i think that these cases while surely not proving that roberts court is a hostile court to business, go a long way to showing that you can't paint with too broad a brush and that it really depends about the specific nature of the issue before the court. at the end of the day, most business cases are statutory interpretation cases. and so the result in these cases is probably going to have more to do with theusiness orientation of this congress that passed the statute than the business orientation of the supreme court that decides the case. >> so irwin? >> just rea briefly, i think
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what's most notable is the increasing number of business cases on the docket. becausyou've already talked about antitrust patent securities. there are several bankruptcy cases on the docket this term whereas for many years the court wasn't hearing bankruptcy cases. and i think this is a reflection of john roberts as chief justice, that i think he spend most of his career before going onto the supreme court as a lawyer representing business interests before the supreme court. and i think this is a court that is much more interested in antitrust patent securities and bankruptcy than say the rehnquist court was before it. >> we do have some time for a few questions. yes, sir. >> i'd like toask irwin about -- [inaudible] in the absence of ofs system united decision, an incorporation called general electric says [inaudible] an inch corporation called "washington post" can spend millions on paper and magazines
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but the [audible] corporation can't spend a couple thousand on billboards or [inaudible] how would you [inaudible] >> thank you, judge buyer, for the question. [laughter] >> i think the question is what weight do you give to the word "press" in the first amendment? and do you believe that in order to be able to have free press there's an ability of the press to be able to have a television station that editorializes or a newspaper that editorializes. and does it mean that because we're going to protect press that that then means that every corporation should have free speech rights? when the supreme court in austin said that corporate spending on election campaigns were restrengthed, the court gave two primary reasons. one was the concern over the distorting of facts of corporate
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wealth in election campaigns, and the other was protecting shareholders, that there's a concern that shareholders might have their resources used to advance beliefs they don't have. that concern is obviously much less with regard to media corporations when it comes to the shareholders because they obviously know that owning stock in a media corporation than with other corporations if you own general motors stock that doesn't mean that's going to be necessarily used for political views. but the bottom line i think comes down to the press clause. >> other questions? yes. >> a question on how the court decides their cases. [inaudible] salazar all the way to washington, and the p.l.s. case there's a dispute about factual records used in
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[inaudible] >> well, let me say one thing about it which is you're right to point out a couple ofs cases where maybe in retrospect it looked like the particular vehicle the court had chosen to take a case was not optimal. there were some what we affectionately refer to as vehicle problems with a particular case. ..
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and there were all the incentives that were in ca of doubt, recommend the 9 pin from
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the court's perspective, it comes into oblivion. it is under a microscope and all of these little defects can be revealed. with justice stevens's impending retirement, just as a leader was not a member of the pool. -- justice alito is not a member of the pool. on balance, having more -- the circuit pool has its role, but having at least two justices, it would be nice to have two justices that would not necessarily agree on everything. it would have an effect on the selection process. >> [unintelligible]
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>> it is a requirement that eeoc charges be filed to avoid unlawful discrimination. when does the statue of eliminations -- one is the statute of limitations -- when does the statue limitations commission on this? this city divided the applicants into three groups, well qualified, qualified, and not qualified. the lawsuit was filed 340 days afr the test results were announced. but it was 181 days after the second time the test results were used.
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if you said that it has to be within 350 days of the time they were announced, it is not permissible. how do you determine when statute of limitations run? in terms of discriminatory impact clinton book title 7, that is the issue in the case. ->> how did you read the argument? >> i think it is really hard to read that argument. it is one that is really hard to call. there is a key difference in the argument. in ledbetter,he realistical could not have filed a discrimination claim because she did not know what the salaries of the other employees were. several justices saw that they
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could have brought to the challenges after the results were announced. since it was known, it could have been brought in earlier. but it is hard to read the argument. >> i think the court really did see this as a different case from ledbetter. i think they were wrestling with the difference between disparate impact and disparate treatment. when you think about title 7, you instinctively think that disparate treatment is the worst thing th could happen and could happen.act i if the court says that the statute of limitation has not run, it would be easier to bring a disparate impact claim that the disparate treatment claim. to put it in real terms, if lee ledbetter had sued and said that she was not subject to disparate treatment back in the day, but
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subjected to a disparate policy back in the day that continue to have the current defect, there is a statutory argument that she could have brought to the disparate impact claim, but not the disparate treatment claim. there's something that seems counterintuitive about that. >> let me ask the to be one final question. -- let me ask the two of you one final question. [laughter] or you could notnswer that. [laughter] >> i will go first because somebody has to. i do not know that there will be a big surprise. there is not where i am thinking that there will be a counterintuitive result. i will answer a slightly different question. of all e cases that will come
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down, i think that the honor services case will be the cases that will be the most interesting. if the court says that there are constitutional limits on the honor services statute, that will have a very big impact. i know very well how much the federal government revised -- you and i know very well how much the federal government relies on the honor system. that is a very close race to watch. >> the solicitors office, it -- the solicitor general's office, were very interested in this. this is a 3-case term. >> the only thing i would add to that is that, in the public accountability oveight, that could be incredibly important. those could be the sleeper cases of the term. >> you can see why they are viewed by everybody as two of the greatest experts on the
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supreme court. , erwinou chemerinsky and paul clement. [applause] >> solicitor general indicate in was on capitol hill to meet with several senators -- solicitor kagan waslena qaedand
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on capitol hill to meet with several senators. >> any reflection being on the other side of the fence? >> how about -- you look like
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you were -- >> miss kagen >> thank you. that after. thank you. i think they are important, though. [laughter] >> do you think they are important, ma'am? [laughter] >> you know that we are going to have hearings. >> thank you, everybody. >> the good work.
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>> no running. there is no need to run. nice and orderly. >> we're glad you're here. thank you for coming by and thank you, some consider general kaydin -- solicitor general .aydikagan
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we would like to chat one-on-one and we will talk about some personal things and some little things. she will have some questions about how we will conduct the process. i will commit to you what i told the president. it will be a fair process and it will be completed, as he requested, as soon as possible, if things go well. i am glad to have you in the senate office building. >> [unintelligible] >> i think there are important. it gives us an opportunity to see the human being behind the print and the media and the tv hype that is out there. i look forward to it. i think it does help. >> [unintelligible]
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thanknk you're a body -- you, everybody. >> thank you. >> we have a delightful conversation with miss kaydin, the solicitor general. -- with ms. kagan, the solicitor general. i enjoyed my time with their. -- with her. i have not gotten to know her before this. we will have a fair and rigorous hearing. we will inquiry into the nominee and, in the end, make a good decision over whether or
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not they should be confirmed. i told her that i have committed to president obama that we will do our best to complete this process as soon as possible. it is not as long as a lot of people think. there could be disruptions or unexpected developments. we will do our best to complete the process is a fair way. i think it is important and i shared with her that a judge must understand the significant disparities in law and that laws are not above the constitution. many feel they have the power based on changing circumstances in the world and they can
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redefine the meaning of the constitutional law. every day, people [unintelligible] if they have the view that t urts are not faithful to the long, that those courts are somehow imposing their political, social overview on american people, then the whole system is in jeopardy. i think she indicated that she understood that. she does come out of a tradition of activist judges and well respected judges -- and well-respected digits. we talked about that little bit. well-respected and
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judges. we talked about that a little bit. >> what is your impression? >> she made to the point first when talking about her background and where she grew up. i think it is more an important how theyhink, how they rule, whether they can be objective as a judge. >> senator -- >> [unintelligible] >> we talked about that. i shared with her some of my concerns about that. she responded to it.
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>> bitchy -- did she [unintelligible] >> i think perhaps i am unfair this point. it seemed out of touch, that you could disagree with the legal policy of the military and that would allow you the ability to come to [unintelligible] i think we indicated some of the rarified dangers of being in the academy. >> it sounds like you have some concerns even after she told you about her views about the military. >> i think that the harvard
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military issue was a big mistake. i have said that before. [unintelligible] so i have some history of that. also, encouragingly military [unintelligible] >> you have also said that you are concerned about becausshe is coming from the obama administration and could be a rubber stamp to policy. did you talked to her about that? >> yes. a nominee that comes from any background -- but she has been politically active throughout her life. she has identified with the american liberal position. ed for two activist
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judges. i asked her if she understood that, as a dead, she may be called upon to amend the rulings. [unintelligible] she indicated that she did. she indicated that she would be faitul to the law. but every nominee does that. more activist and judges have said that. and they believe, when they are judging, that they are doing that. >> do you think that the committee will request documents from her time as a clinton aide and get them before the committee? >> i think all the documents
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that are reproducible should be produced. she has no judicial record. she has a very small actual record as a practicing lawyer. i think the american people are entitled to know what kind of position she took and what kind of issues she was involved in during her time of public service. >> what about her lack of experience? >> in my view, her experience is very thin could you do not have to be a judge previous to be going on the supreme court. i woulde not a judge, like to see somebody practice of the w for a number of years and demonstrate discipline. >> [unintelligible] >> we down surrounded a little
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bit. she indicated that she had expected do the job and did not hesitate in that answer. >> [unintelligible] [laughter] did you tell her that? >> no, i did not say that. new york is a great place. but there are other places in the nation, too. there are other universities and harvard is a great university. so it is pretty unusual. i never thought about it reay until today. >> [unintelligible] >> we just talked about a lot of things. it was a nice conversation. it was not one in which i was cross-examining her or demanding a commitment from her on this or that issue.
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it was more for me to have a better perspective on where she saw her role. >> you're looking for [unintelligible] + area [unintelligible] -- what area [unintelligible] what area would you then look for that would help you [unintelligible] >> if you do not have a lot of experience or practice, which you look for any nominee, you look for a legal record, good judgment, some demonstration that the nominee understands the need to show fidelity to the law and integrity. this is really good, very important. and a lot of people are good people, but they do not have the kind of intellectual consistency
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that i think is a form of integrity. those the kinds of things we will be looking at. >> [unintelligible] >> i cannot say exactly when other areas at this point that i would be concerned with. i would like to know more about her judgment. that is what you select a judge for, and judgment. >> [inaudible] >> i do not -- i hope we do not do the hearings toussaint. -- i hope we do not do the hearings to soon.
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it would be unsatisfactory of the hearings occurred before [unintelligible] icu knollwood need to rush. -- i see no need to rush. then you have to go well beyond that to [unintelligible] >> [unintelligible] >> yes, i think that is good. [unintelligible]
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>> were there any areas of disagreement in your conversation, in your meeting? >> we talked about a number of things, of the military, some other issues. she explained and i mean that have fully agreed in the end. >> what would you say is your biggest area of concern with her? >> fundamentally, we ne a judge who will be faithful to the constitution. i do not want a judge to promo my agenda on the supreme court. ilso do not want a judge on the court to promote the political agenda of the president. if they had understand the difference between politics and
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law -- and a lot of the esident's comments on judges and what he looks for is clear, law and politics. the president was not so much concerned with process, but results. his "results-oriented." this is not law. i do not know what this . i do not think he is a lawyer. these are the kinds of things that we want to make sure we have a judgeho understands that they he a judicial role and not a policy role and must be faithful to the law. when your not, you erode public confidence. >> thank you.
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>> it is a piece of art, really. >> it's a piece of art. >> it's beautiful. >> all right. thank you, guys.
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very much. >> fab loiso fabuloso! >> really? >> yes. >> ok. >> appreciate it, you guys. >> ok. thank you. >> good luck. thank you. >> all right, dear. >> elaine kaydin was on capitol hill today where she continued her busy eliminate kagan was down capitol >> senator kagel was on capitol hill. she met with --
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senators.
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>> they say, how can you leave from brooklyn and be a yankees fan? >> the yankees were the only ones left.
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[inaudible] i will tell you one story that relates to use. in 1967, the cardinals wer playing the red sox for the world series. i could not get a ticket to fenway park. >> thank you. thank you. >> i said,, father. -- i said, call my father. you can get your ticket for $47. [unintelligible] >> thank you. >> in the first steny, lou
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brock, cardinals, -- in the first inning, lou brock, cardinals [unintelligible] >> fourth floor. >> my concern is that the supreme court justices are way up in that ivory tower and do not understand the consequences
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of their decisions on government and i have no doubt that it had 500 people. it was like a legal factory and she ran it witsome many different factions and some egos and she made it into a well-running and smooth business. my daughter was that deal law school and she sai that one of the reasons she hopes that in linen kagan gets nominated is because she is recruiting him -- that elaine a cake and gets nominated is because she is recruiting all of -- that the qaedelena kagan gets nominateds
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because she is recruiting all of their best people. she is a moderate, which is one criteria could i do not like them too far right and too far left. i do believe that she is a moderate. i think that the wants and strength of her personality will meet the criteria that the president laid out. she is very likely to be one of five votes, not one of four votes. that is perhaps one of the most important cteria for the next several years. >> republicans are making comparisons with her and margot
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myers. -- and harriet myers. >> she did not have legal activism when i asked her neck -- activism. when i asked her a question about something that on the supreme court would have done so with second nature, she did not have an answer. elena kagan did not do that. if you had to pick practical experience that would help you be a good supreme court justice, running a large law school is probably a pretty good one. you have to meet budget. you have toringeople together. you have to practice the best of your decisions. >> she actually brought up the fact that, if she is confirmed,
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there will be four new yorkers on the court. he said that would be too much. what is your reaction? >> quality of people, that should be the primary thing, not where they come from. in new york, we have a lot of quality people. >> [unintelligible] >> i talked about some of those issues and her answers were thoughtful. we mainly talked about who she was and where she comes from an d with the area of being a justice. >> [unintelligible] >> are we faced with the supreme court, everybody? >> yes. >> did you discuss the nominees
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in front of the judiciary committee? >> yes. >> did she criticize any of the sitting judges? >> she did not. i told, for instance, when miguel estrada, if you asked him if the sky was blue, he said he could not answer that ibecause a case could get by me and i would be jeopardized and that appeared you cannot do that -- jeopardize that. you cannot do that. >> she has some issues possibly with some hard decisions at harvard. >> i am not going to get into the specifics. >> [unintelligible] can you talk about the possible
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problem at harvard with her hiring practices. can you talk about that? >> no. >> the white house says they are cutting funding [unintelligible] >> i have spoken with rahm emanuel and attorney-general holder this morning this about . first, 11% of the transit anti- terror funding, we get far more of the 11% of the threat. 100% on target. in terms of the view that new york got a lot of money from the stimulus bill, that is true. that was last year and the threats have increased. over last four months, we have en a new group that is
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clearly targeting u.s. citizens and targeting new york. there is the pakistani taliban. they came all too close. the old formulas do not work. one thing i suggested to the white house is that they could make up a part of this with the largest anti-terror money that would be allocated next month. there's no question in myind that, given the level of terrorism threats, new york does not get its fair share on a percentage basis or the amoun that we should get in terms of all the things we have to do to protect our citizens. >> [unintelligible] >> they are looking at the was the -- at the uazi. >> [unintelligible]
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>> it is unfair to blame this on the president. these budget numbers were probably put in place in december and january before all of the new information that has come about has. but i do say that, both that omb and homeland security, they should have seen this and caught it. my hope is that the present -- no one can doubt his 74 new york and his understanding of the debt that we are under. -- no one can doubt his sympathy for a new york and his understanding of the threat that we are in there. thank you, everybody.
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>> i may be cutting its in little early. >> [unintelligible] >> [unintelligible]
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>> that was the first question i
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asked her, the concerns about the position of privilege. she answered it very honestly. that she is supportive of the td men and women o is introducing her. i am waiting for [unintelligible] i am looking forward to it being fair and open and respectful. those are my three top priorities. i am one to learn about her. there is not much then you can do -- there's not much of that you can do in a three-minute meeting. >> thank you, senator brown.
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we have to go to vote. thank you. >> have you been briefed all [unintelligible] >> well, good morning, everyone. it is a pleasure to have you here with us. before i begin, i want to introduce the wonderful people on the stage with me. obviously, she needs no introduction. obviously, the first lady, mrs. michele o'bama.
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[applause] >> and then we have the assistant secretary from the u.s. department of agriculture, kathleen. i am really pleased to have them with us here today. 90 days ago the president formed if first-ever task force on childhood o'beesty and asked us to work together to reduce the levels of childhood obesity and reduce it significantly with a generation. but in doing that he also told us things critical to our work. first of all, he told us the federal government cannot do this alone. that we had to work together
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with the philanthropic sector and everyone who has a stake in ensuring children are leading healthy and balanced lives. so we went and set out to work with them. he also said we had to ensure we were bringing together people in the public and working together with the public to ensure we knew what they thought and we were bold over by the response. over 2500 responses from doctors and nurses, parents, community advocates, and others telling us and sharing with us their recommendations and their best thoughts on this issue. so we believe that with those two things combined, that we have produce ad really informed report, and -- produced a really informed report. we are rolling out this report,
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responding to the president's charge. in this, we have what we believe is a road match, an action-forcing set of recommendations that will help us move from today, forward, to ensure that we can, in fact,, reduce the levels of childhood obesity in a generation. >> what we believe we have to do and what we believe we can do is move from the levels we are today, 20% of our young people who are obese to 5% of our young people who are obese. five a year, 20/30. so we will be working with the private sector, state and local governments and others, based on these recommendations to try to achieve that goal, and we do believe that goal is achieveible. to do that we will be working in five different areas. first of all, making sure children get a healthy start to their lives.
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we have recommendations for prenatal care for future mothers and their children. we allegation are including breast feeding opportunities for young mothers and their infants. we're talking about limits onscreen time so children are able to live a more healthy and athletic life and making sure our children in health care facilities have an active and healthy life. we believe this is not something the federal government can do alone. we're sharing information with parents and care givers, so that they have actionible messages, clear messages about what they should be doing and what would be helpful to them to make sure the children under their care are leading healthier lives so that we are moving towards our goals. they include marketing of unhealthy products to children
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and bmi measurements for children. and we are making recommendations around providing healthy had no schools. through federally-supported school lumps and breakfasts, upgrading the a la carte foods available at our schools and improving nutrition and education. fourth, improving access to healthy, affordable foods. we've heard of food deserts. we've heard those talk passionately about this issue and have gone around the country and looked at the good work happening around the country both urban and rural where this problem exists and making recommendations where this problem is at a point where we can address it and make sure healthier foods are getting into our communities and to our children and finally making sure -- and finally, making sure our children are
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leading healthy, active lives from physical act ith at school to builtin environments so they are able to bike to school and do things that are more healthy. at this moment i'm also proud introduce to you a person who has been working on this issue from day one, and a person who has given snotch terms of her savvy and on this issue, the first lady of the united states, michele o'bama. [applause] >> thank you. thanks, everyone. and thanks, melody for that kind introduction. that wonderful summary. i want to thank melody in particular for her work with this administration, especially her leadership on this task force. as i said when we announced the task force effort, this is going to have to be an administration-wide effort.
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and i am proud of the way that so many people from so many different areas of the federal government have come together and embraced this challenge, stepped up with a level of commitment and passion that's really made a difference. if we just take a step back for a moment and just think about just how much the group has been able to accomplish in such a short period of time, in just a few months, the folks behind me have worked together to put forward a comprehensive plan that draws on everything that we've done up to this point and shows us that clear way forward. that coorps ever cooperation and enthusiasm and more has made this what it is today. that's why we are here today to, put together the plan of action to reduce and rescrers
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childhood obesity in this country. we know it's possible and wen we have the tools and resources to make this happen. now thanks to the work of the task force, we have a road map of implementing our plan across the government and across the country. i have talked about the statistics. we have all heard about them. but they always bear repeating. how nearly one in three children in this country are obese and one in three kids will suffer from diabetes at some point in their lifetime as a result and how we are spending $150 billion a year to treat obesity-related conditions, like heart disease and cancer. that is why three months ago "let's move." and we set a very ambitious goal, that's to tend epidemic of childhood obesity in one generation so children born today will grow up at a healthy
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weight. we've already done the work resolving around four main pillars. we've been working to give parents the information they need to help make healthy decisions for their families. we've been working to make schools healthier and increase the amount of physical activity not just during the day at school but also at home and we're working to eliminate food deserts so folks have easy and affordable access to the foods they need right in their own neighborhoods. but all that we've done over the past few months really has just been the beginning. we also want to make sure we're using every resource that we have not just in our federal government, but throughout the public and private sector as well. we are calling upon mayors and governors and educators and business and health care providers, anyone who has a stake in giving our children the healthy, happy future we all know they deserve.
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and as i said before, we don't need new discoveries or inventions to reverse this trend. again, we have the tools at our disposal to reverse it. all we need is the motivation, will power and -- to get it done. we asked the task forces to collect ideas and put together road maps for what we need to do moving forward. but we have also known as melody pointed out in the beginning, that the solution isn't going to come from washington, alone. not a single spert that we've consulted said that having the federal government tell people what to do has solved this. that's why the task force has done such a great job, reaching out to people across the country, for their ideas,. and we've gotten terrific ideas and input that's really helped
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to shape this. outlining federal agencies and partners and businesses in the private sector, steps they will take in the months and year ahead to help this. for the first time, this is key, we're setting clear bench marks and outcomes that will help tackle this challenge, one step, one family, and one child at a time. the effort starts with using the resources across the federal government in the most effect i have ways possible. not just talking about making a difference, but actually doing it. and that is why i am so proud of the folks behind me, because they have really taken the lead and stepped up in their agencies. in the department of agriculture, the secretary, who couldn't be here, but kathy is here, to authorize getting healthier foods in our schools
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and making sure everyone in this country has access to healthy, affordable foods in their neighborhoods. and secretary is a bill yuss is working to provide mothers with better prenatal care and to give parents and caregivers information they need to make better decisions for their families. and at the department of education, they are working to expand physical activity in school and educating our children on how to make healthy choices for themselves. >> and working with so many to help pass health reform. the bill that is a a groundbreaking piece of legislation that includes important provisions like requiring chain restaurants to foast calories in their food, and businesses to provide opportunities for working mothers to continue to breast feed. this report also contains these steps, but many others. more than 70 as melody pointed
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out. including measureible benchmarks for tracking the progress. so if we do our jobs and if we meet the goals we set, we will reverse a 30-year trend and stolve problem of childhood obesity in america. in order to make our kids maintain a healthy weight from the very beginning, we're going to increase prenatal counseling and help pregnant mothers maintain a healthy weight and setting a goal to help increase breast feeding rates to help children get a healthy start in life. to encourage children to eat healthier, we're seting a goal to increase the amount of fruits children consume to 75% of the recommended level by 20 is a, we want to increase that again to 85% by the year 2020 and then by the year 2030 we hope to be at 100%. we are using a similar scale to increase the percentage of
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vegetables that our kids are eating as well. we're also working to decrease the amount of added sugar that our kids consume with -- from a whole range of products. and to make sure parents and kids are getting the right information they need to make healthy decisions, we are setting a goal that all primary care physicians should be accessing b.m.i. readings at all well children check-ups and increase the healthy bemples and foods targeted at our children so in three years the majority of food and bench ads aimed at kids will promote healthy choices. we're also setting benchmarks for our schools as well. we'll be working many times takeover months to them school
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challenge by the year 2011, and we want to add another 1,000 schools each year for the following two years. we're also aiming to add an additional 2 million children to the national school lunch program by 2015. to help our kids stay active, we're going to increase the number of high school students who participate in daily p.e. classes by 50% by the year 2030 and we'll aim to increase the percentage of elementary schools that offer recess to 95% by the year 20 10. -- 2015. both these steps are aped at boosting the number of kids at all ages who meet current activity guidelines. to make it easier for parents to put healthy food on the table, we're going to keep track of low-income areas where residents live more than a mile from a supermarket or large grocery store and for rural
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areas we're tracking those more than 10 miles away and stet goal of eliminating all those food deserts within seven years and to make it easier for kids to walk to school we will encourage children those taking walking and biking trips to school safely by 50%. that's why this task force is so important. we all know the dangers of childhood obesity and the toll it takes on our children, families and country and we know the steps we need to take to reverse the trend. through "let's move" we've already started making progress. we've gotten wonderful support from all sectors of this country, and now with this report, we have a very solid road map that we need to make these goals real and to solve
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this problem within a generation. >> now we just need to follow through with the plan. we just need everyone to do their part. and it's going to take everyone. no one gets off the hook in this one. from governments to schools, corporations to non-profits all the way down to families sitting around their dinner table. and the one thing i can promise is that as first lady, i'm going to continue to do everything that i can to focus my energy to keep this issue at the forfront of the discussion in this society. so that we ensure our children can have the healthy lives and prithe futures they deserve. so i am grateful to everyone here, not just members on stage, but people in the media who have really done an outstanding job to continue to keep this issue at the forfront. oui going to keep needing to have this conversation.
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our work has just begun. this road map is just the beginning. but we're going to continue to need your help in monitoring, tracking, having the important discussions that we need to inform families about what's going on, how to make the changes they need. it's not going to be easy, but we'll do our part to stick with families and communities, and reach our goals. i want to thank you-all for the support you've lended this effort. i'm very proud of our federal agencies, and secretaries and agency heads. every single one of them have shown a passiont they've seen around our country that we're poised to make a difference in our country, that people are ready for this change. so with that, i'll again, thank melody, for her work in leading this very efficient and effective earth, and then we'll open it up, the secretaries
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will answer questions. i will leave, but they are very comp tencht to get that done. so thank you-all. [applause] [applause] >> well, we would like to open this up, and we would like to take your questions. and let us know if you want them directed at any particular person, but -- great. if you would give us your name and position. >> thank you. do recommendations about a higher tax on sugery drinks, i wanted to get more information on that and how you would froze implement such a thing, and
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whether you think you could actually get something like that through congress? >> sure. >> i think the remps to the tax is a reference to what is going on in some states and localities around the country. there is no proposal for a federal tax on sugar. but it is a strategy that is in place in some communities, and then others are taking a strong look at it, because it does correlate to a lower use. so the reference is this is one of the efforts underway right now. and it may be community strategy that others want to deploy, but there's no recommendation for a federal tax. >> next question? >> yes. i'd like to direct this question to jerry from national journalist congress daily, i'd like to thards question to deputy secretary mayor began.
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-- the action you have planned is to update the guidelines and food pyramid and the question i have is whether that is on a speeded-up schedule, compared to what they've done in a few years. i was just wondering how soon you would be doing that. >> the process has been underway for nearly a year. we've a committee of experts working on that. and we are very close to a first release for people to get into the weeds and figure out how they feel about it. so it's been ongoing for a while now, and it's married up to the larger effort. >> great. next question? >> hi. i'm judy. [inaudible] i'd like to know about this school lunch program. we've -- particularly the a la carte items.
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4r there be any outright ban on some of the more nutritionly worse foods? yes? we'll be working with the secretary to think that thing through, but what he's pushing so hard on is to make sure the food we're serving, the breakfasts and lunches, are healthier and making sure the vending machine foods are healthier and that we instill in children at an early age to understand these issues. >> and he's trying to take the country in an extraordinarily important direction, and he's looking increased money for that, he's been a phenomenal part in this effort. >> to add to that -- >> did you want to go? >> i'll add to that. we are looking at the quality
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of school meals. but we're also looking at a population in this one where nearly 18% of children are food secure. so when there's a pillar of let's move, this is about food access. it's about food deserts, but also about hunger and obesity. same root cause. lack of excess to a heavyweighty alternative. we have many in the school lump program but only 11 million in the school breakfast program and we have 27.4 million in our summer feeding program so there's issues about getting children access to meals. in some cases we know that children, left leg their only sust innocence during the day is coming from these national school lunch program and breakfast, and we need to do better. that's also the priority of the
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organization we're all engaged this this year. quality and as well, reach. >> i also think this is an excellent example of the partnership we were talking about. this is an area where we agree not only across the administration but the food and beverage industry is also in agreement with us that the a la carte foods and lunches amend breakfast meet certain nutritional standards. so that's the kind of collaboration. >> [inaudible] >> sure. why don't you wait for the microphone. >> lynn suite from the "chicago sun-times." when they proposed having insurance cover childhood obesity programs? and why make a distinction between the two? >> well,

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